Andy McCabe (3:07)

Yeah, he was in full on no backsies mode. No backsies. We don't want this one back. But he gets it anyway. And as law professor Steve Vladic explains on his 1 1st newsletter, on Tuesday, the 5th Circuit panel that had originally held that it lacked jurisdiction discharged its duty, issuing a summary judgment order that expedited the appeal to the next available randomly designated regular oral argument panel. That should have been the end of it. But Judge James Ho, who's widely viewed as one of the most likely successors to Clarence Thomas and has been accused of rather actively auditioning for the job, had some thoughts that he chose to commit to the pages of the Federal Reporter Fourth series. That's the volume of books where the Fifth Circuit opinions are published. In a truly striking eight page opinion concurring in the panel's order, Ho took serious exception to the supreme court majority in AARP 2, which he accused of showing disrespect to both the district judge and President Trump in favor of his words, quote, favored litigants like members of Trend Aragua. And yes, he actually wrote that.

Alison Gill (4:23)

Oh my gosh. All right, so AARP 2, and they've asked to change the name because the, because the American association for Retired People is like, this is not us, but AARP2 is the case of, of the, the deportees in, in the Blue Bonnet detention facility in the North District of Texas.

Andy McCabe (4:42)

That's right.

Alison Gill (4:42)

And these are the ones who spelled out SOS in the yard, in the prison yard with their bodies and then like in the middle of the night were put on buses to, to Abilene purportedly to be taken out of the country. And that's when they filed emergency, you know, with the 5th Circuit and with the Supreme Court saying, hey, the district court hasn't said anything and these folks are about to be put on a plane and you know, to, to be removed from, from the country. Please help step in. There's a time, we're on a time brunch here. The buses were turned around. But let's turn to Judge Ho's opinion. And this is not the same Judge Ho that decided the Eric Adams case. This is a different Judge Ho. In the Fifth Circuit Court of Appeals, petitioners identified as members of Trend, a designated foreign terrorist organization, should not be allowed to proceed. In this appeal, our April 18th order held that we lacked jurisdiction to grant the relief sought by the petitioners. But last Friday, the Supreme Court reversed our unanimous decision over a vigorous dissent by Justice Alito, joined only by Justice Thomas. As an inferior court, we're duty bound to follow Supreme Court rulings whether we agree with them or not. We don't have to like it, but we have to do it. So I concur in our order today expediting our consideration of this matter as directed by the Supreme Court. But I write to state my sincere concerns about how the district judge, as well as the president and other officials have been treated in this case. I worry that the disrespect they've been shown will not inspire continued respect for the judiciary, without which we cannot long function. Wow.

Andy McCabe (6:29)

Yeah, a little. A little bitter. Judge Ho. I don't know. Okay, so he continues, it is not the role of the judiciary to check the excesses of the other branches anymore. I knew you were going to hit the pause button on that one.

Alison Gill (6:47)

Yes, it is.

Andy McCabe (6:51)

If you. If you. If you define excesses as constitutional. Excess. Excesses, things that go beyond your constitutional authority, then actually, that's exactly your job.

Alison Gill (7:03)

That's your job. It's your only job.

Andy McCabe (7:05)

Yes. Yikes. Okay. Sorry for interrupting, but no, that's okay. Any more than it's our role to check the excesses of any other American citizen. Judges do not roam the countryside looking for opportunities to chastise government officials for their mistakes. Well, that's.

Alison Gill (7:25)

I want to see, like a short. Animated. Like an animated short of justices and judges roaming the countryside.

Andy McCabe (7:32)

Roaming the countryside. Like in the old days when they used to actually ride the circuit. Yeah, that's where that comes from.

Alison Gill (7:38)

But I wish they still rode the circuit.

Andy McCabe (7:40)

I know, right? I should have to travel by horseback. Even in this day and age, the countrysides. Okay. He goes on to say. Well, he. He seems to have a real problem with the urgency of the petition. I'll just say that keep in mind that the government had told another court that it reserved the right to restart removals at midnight the same day, and that DHS had already loaded migrants on the buses from the Blue Bonnet Detention facility to take them to the airport in Abilene. Despite all that.

Alison Gill (8:11)

So you don't really have to roam the countryside. It's on your docket, sir.

Andy McCabe (8:14)

Yeah, yeah, for sure. So, despite all those facts, he says, quote, rather than commend the district court, however, the Supreme Court charged the district court with, quote, inaction not for 42 minutes, but for 14 hours and 28 minutes. This inaction was, according to the court, tantamount to, quote, refusing to rule on the injunction. He goes on. This charge is worth exploring to get to 14 hours and 28 minutes rather than 42 minutes. The court was obviously starting the clock at 12:34am rather than 12:48pm when petitioners told the district court for the first time that they wanted a ruling before the government could respond. But starting the clock at 12:34am not only ignores the court's express instructions respecting the government's right to respond, it also ignores the fact that the court is starting the clock at all at 12:34am you can almost hear the intensity in his. In his, his writing. We seem to have forgotten that this is a district court, not a Denny's. All right, I'm going to give him some props for that line. That was funny. He landed that one. This is the first time I've ever heard anyone suggest that district judges have a duty to check their dockets at all hours of the night just in case a party decides to file a motion.

Alison Gill (9:41)

You know, the deportations under the Alien Enemies act are also not a Denny's, sir. Yeah, they happen in middle of the night.

Andy McCabe (9:53)

They're kind of like a Denny's, actually. It's just going constantly cranking out those Grand Slam breakfasts whether you want them or not. That's kind of the way the deportations are going, are.

Alison Gill (10:03)

They are a 247 operation. You're right.

Andy McCabe (10:06)

So when that's what you're dealing with, that's what you're dealing with. You gots to get up and. And handle the case. I think that's what the Supreme Court was suggesting.

Alison Gill (10:15)

Yeah. He's like, what do you. I can't be expected to get up at the crack of noon and look at the docket just.

Andy McCabe (10:22)

Just to keep these awful trends from being sent to a foreign dungeon.

Alison Gill (10:27)

Yeah, against.

Andy McCabe (10:28)

Actually, you can.

Alison Gill (10:29)

Yeah, you actually should. Anyway, he's not finished. He says if this is going to become the norm, then we should say so. District judges are hereby expected to be available 24 hours a day. And the Judicial Conference of the United States and the Administrative Office of the United States Courts should secure from Congress the resources and staffing necessary to ensure 24hour operations in every district court across the country. If this is to. If this is not to become the norm, then we should admit that this is special treatment being afforded to certain Favored litigants like members of Trend Aragua. And we should stop pretending that lady justice is blindfolded. Wow. Wow. He concludes, this appeal should be over. Over. I. I just added that petitioners denied the district court the opportunity to rule on their emergency motion in the first instance. That alone should have been enough to terminate this appeal. But the Supreme Court has reversed our unanimous judgment, so this appeal must now proceed. I accordingly concur. And I just want to remind everybody here that once the fifth Circuit court of appeals was weighed in on by the government, that gave the Supreme Court jurisdiction to do what they did, regardless of the 14 hours or the 42 minutes.

Andy McCabe (11:48)

Yeah.

Alison Gill (11:48)

So they. The Supreme Court having jurisdiction and remanding this back. Now, keep in mind, Kavanaugh didn't want to remand this back to them and wanted to do all the arguments and briefings himself up. Well, not himself, but, you know, Supreme Court. But to. To. To be really angry about the Supreme Court's remand when regardless of what the district court did, the Supreme Court did have jurisdiction and they were able to vacate. They were able to treat it as a writ of certiorari and vacate the. The fifth Circuit's decision because the government responded. So it's. I don't know. It's just. It's wild that he. But I think what is even more kind of shocking, Andy, is his. Oh. So it seems like the Supreme Court and Trend Aragua are pals and, you know, the Supreme Court is palling around with terrorist organizations at Denny's in the middle of the night or whatever. It's just bizarre.

Andy McCabe (12:51)

It. It's really crazy. I've never seen anything like this. He's. He. He. Like. Like every. Every discussion nowadays, it's all laced with political accusations like, oh, you know, you're favoring this other party. There's no real justice, you know, and the. The heart of his concern is, like, not standing up for the lower court, but rather, like, look at how unreasonable this is that we should be expected to respond in the middle of the night. What do you think the Supreme Court does all the time on these last second requests for appeals from execution orders. Right. Like, this stuff doesn't come in only in business hours. It's just the way it goes. I feel like he's really, really kind of degraded himself here with this.

Alison Gill (13:42)

Yeah.

Andy McCabe (13:42)

And it's likely that if he does have, you know, if he hopes for. Hopes to be considered for a Supreme Court slot, man, I really feel like this thing will come back to haunt Him.

Alison Gill (13:54)

Well, it depends on who's doing the.

Andy McCabe (13:57)

That. That's true. But I mean, just, I mean, well, well, we've seen, I guess, the failure of, of judicial temperament to mean anything in the Supreme Court nomination and confirmation process, thanks to Brett Kavanaugh. But this certainly does not comport with what traditionally we think about as judicial temperament.

Alison Gill (14:17)

Yeah. Certainly at this level, it, it certainly is the kind of judicial temperament that I think a lot of Republicans in this administration prefer. But the time thing, I mean, if you like, I just want to clear something up a little bit, if I could ask Judge Ho a question. I understand you don't like the 12:34 in the morning thing, but could you have not seen it at 8 in the morning? Could the district judge have not seen it in the morning? Because then we've got another at least, you know, a day, six hours. Right.

Andy McCabe (14:50)

A working day. Yeah, absolutely. And again, much like the Alito descent that he references, it's a complete absence in his writing here of any kind of recognition of what is at stake for these human beings that were being ferried to the plane as this, as this nonsense was taking place.

Alison Gill (15:11)

Right.

Andy McCabe (15:12)

Like nothing. Nothing. No recognition that this is a, this is an extreme situation in which this, you know, going to court is a last resort for people who are, who by anybody's estimation have been in the least case, denied due process. But, you know, what do you expect?

Alison Gill (15:32)

Yeah. And I mean, that's, you know, when you're racing against the clock like that, you'd, you don't really have a choice if you're the petitioner, if you just file it as soon as you can.

Andy McCabe (15:40)

Right.

Alison Gill (15:41)

So.

Andy McCabe (15:41)

Right.

Alison Gill (15:42)

Especially with the government. But, and Alito got it wrong when Alito said, oh, they're not going to deport anybody this weekend. That's the opposite of what they said in Boseberg's court. Even though Boberg said, I can't issue a restraining order. I'm. I don't have jurisdiction here. I'm in D.C. but it was still brought up, you know, so I don't know. This is just a very odd concurrence to write.

Andy McCabe (16:04)

And it's, it's a tongue in cheek concurrence. Right. He's concurring with their order to like, get re involved here because he has to. He makes that perfectly clear in his first paragraph.

Alison Gill (16:14)

We don't have to like it.

Andy McCabe (16:15)

Right. He would love to have been, you know, been dissenting.

Alison Gill (16:19)

Poor you. Or you having to work on a weekend when there are people in A torture prison that were. That were sent there by mistake. Poor you, Judge Ho.

Andy McCabe (16:30)

You know, at the end of the day, if, if the government had actually given these people adequate notice as a part of their due process rights, there would have been no time crunch.

Alison Gill (16:41)

Wouldn't have even been here.

Andy McCabe (16:42)

Yeah, there were. None of this would have happened. They would have had the opportunity to think about it, contact an attorney, hire that person, talk to them, come up with a habeas motion and, and pursue it under whatever circumstances the government wanted to define it. So.

Alison Gill (16:59)

Right. If they had, you know, a 10 day, you know, period in which to object, then the district court would have had 10 days to respond. So anyway, I want to continue to talk more about the Alien Enemies act case. Specifically the claim that the administration is making that somehow the, the. The trend. Trend Aragua is. Is. Has been sent here by the Maduro regime. That we are under attack. There is an incurs soil by Venezuela.

Andy McCabe (17:32)

Right.

Alison Gill (17:32)

And I want to discuss that because we have new information from the same reporters who came out and reported on those. You remember those intelligence NIC assessments? I do, yeah. And, but there's more information now and it's pretty damning. But we have to take a quick break, so stick around. We'll be right back. Hey everybody, it's ag. If you're still tossing and turning all night and feeling edgy during the day, let me tell you what finally worked for me. CB distilleries. Sleep gummies. I've tried a lot of things to calm my brain and slow my thoughts down and actually stay asleep. But nothing helped quite like these. Within about 30 minutes, my body felt calm, my thoughts stopped spiraling, and I got the deep sleep I've been missing. It's no wonder over 90% of CB Distillery customers report better sleep. The stuff really works. And it's not just for sleep. They've got clean, high quality CBD for stress, pain, after workouts, focus, mood support, and even CBD treats for pets. What I love knowing is exactly what I'm getting. No weird fillers, just premium CBD with 100 money back guarantee. Over 2 million people trust CB Distillery and I'm one of them. And now I actually wake up feeling like a human being again. And I want to thank CB Distillery for sponsoring this episode. You can get 25 off your entire purchase@cbdistillery.com and use promo code Unjust. Millions are making the change to CBD from CB Distillery and it's easy to see why. Trusted by over 2 million customers and backed by a full money back guarantee. CB Distillery helps with sleep, stress and more. So if you're ready for relief, it's time to try CB Distillery. So again, for a limited time, you can save 25% on your entire purchase. Just visit CBDistillery.com and use promo code UNJUST. That's CB Distillery.com promo code UNJUST. One last time for everybody in the back, cbdistillery.com and don't forget to use our code Unjust. Specific product availability depends on individual state regulations. Hey, everybody. Welcome back. All right. Let's continue. As I said before the break, with the Alien Enemies act cases, you'll recall in previous weeks going all the way back to February, actually, Andy, you and I discussed the intelligence community's analyses. There's multiple now that trend Aragua is not acting on behalf of the Maduro regime or the Venezuelan government at all. That assertion is at the center of the Trump administration's claim that its use of the Alien Enemies act is lawful because we are at war with Venezuela, Andy.

Andy McCabe (20:06)

Oh, yeah.

Alison Gill (20:07)

And that trend Aragua is equivalent to an incursion or an invasion of the United states. But on February 26, the intelligence, the NIC, the intelligence council, National Intelligence Council released an analysis saying that TDA trend Arragua is not here on behalf of the Venezuelan government. And we know that the Trump administration didn't like that answer. And we knew that. They asked for another analysis, and we got one April 7th saying pretty much the same thing, but explaining the only reason the FBI had a little bit of a disagreement was because it's possible, though not confirmed, that some members of Maduro's regime might have sent some members of TDA to five or more countries to stir up trouble. But that was all very iffy. Right. That intelligence was not very well sourced, but the overall assessment remained the same. There's no official ties between TDA's presence in the United States and the government of Venezuela. Well, this new reporting, Andy, from the New York Times shows that not only did the Trump administration ask for that new assessment, they actually asked the intelligence analysts to edit it, make changes to their conclusions. Those people refused and ended up being fired, though.

Andy McCabe (21:22)

That's right. So we know from the New York Times new emails document how a top aide to Tulsi Gabbard, the director of national Intelligence, ordered analysts to edit an assessment with the hope of insulating President Trump and Ms. Gabbard from being attacked for the administration's claim that Venezuela's government controls a criminal gang. Quote, we need to do some rewriting and More analytic work. So this document is not used against the DNI or POTUS.

Alison Gill (21:52)

Wow.

Andy McCabe (21:53)

Yeah. Joe Kent, the chief of staff to Ms. Gabbard, wrote in an email to a group of intelligence analysts and officials on April 3, using shorthand for Ms. Gabbard's position and for the President of the United States.

Alison Gill (22:08)

So thanks for your intelligence analysis, but can you change it, please, to protect the president and Gabbard. Wow.

Andy McCabe (22:20)

Yeah. Like, totally missing the point of what intelligence is and how the process works and what it's based on. And this guy is a very high ranking person at the DNI and about to get another job.

Alison Gill (22:34)

Yeah. That's frightening.

Andy McCabe (22:35)

Yep.

Alison Gill (22:37)

Now, the article goes on to say the Times reported last week that Mr. Kent, who you were talking about there, had pushed analysts to redo the assessment, dated February 26, of the relationship between Venezuela's government and the gang Trend Aragua after it came to light that the assessment contradicted a subsequent claim by Mr. Trump. The disclosure of the precise language of Mr. Kent's emails has been added to the emerging picture of the politicized intervention. And I'm glad they recognize this as politicized.

Andy McCabe (23:07)

Yeah.

Alison Gill (23:08)

The final memo, which is dated April 7 and has since become public, still contradicts the key claim that Trump made to justify sending people accused of being members of trendroragua to a notorious Salvadoran prison without due process. It still says the same thing.

Andy McCabe (23:24)

Emails on the topic from Mr. Kent, who is also Mr. Trump's pending nominee to lead the National Counterterrorism Center. Yikes. Have circulated within the intelligence community and were described by people briefed on them. Mr. Kent's interventions have raised internal alarms about politicizing intelligence analysis. Defenders of Mr. Kent have disputed that his attempted intervention was part of a pressure campaign, arguing that he was trying to show more of what the intelligence community knew about the gang. All right, so hold on a second here. Here's a little insider knowledge. The way you know what the community knows about an issue is you ask the nic, the National Intelligence Council, a question. Hey, what's the deal with Trend Aragua? Are they part of the Venezuelan government? Were they sent here by the government? Lalala. And then you wait. And what the NIC does is they scrape up everything that we have on this subject. They go through it all, they organize it, and they come back to you with a. With a finished product that includes their analytical judgment based on the analysis and the record. It could be like source reporting. It could be interviews, it could be anything, could be open source reporting. And they give you their official position. But when you call back and say, no, no, put this in, you are taking that piece of analysis and turning it into a political argument.

Alison Gill (24:50)

Mm.

Andy McCabe (24:51)

Okay. So the disclosure of his email supports the accounts of critics who said he was applying political pressure to generate a torqued narrative that would support, rather than undermine, the administration's policy agenda.

Alison Gill (25:05)

Yes. The White House requested the original assessment in February as it was preparing Mr. Trump's alien enemies act proclamation. They said we should get some supporting evidence here.

Andy McCabe (25:17)

But we have the proclamation. We know what we're proclaiming. Can you just give us something that says we're right?

Alison Gill (25:22)

Yeah, we have a proclamation in search of supporting evidence.

Andy McCabe (25:25)

That's right.

Alison Gill (25:27)

Even after the council produced its first assessment, Trump proceeded to sign the proclamation that put forward the opposite claim in order to activate wartime deportation powers. So either he knew about it and ignored it, or he didn't have anything to do with it. And Stephen Miller was signing it for him in auto Penny. The disconnect first came to light in a March 20 Times article that reported on the existence of the February 26 memo. That's when we brought it to you here on unjustified and detailed why the intelligence community had reached its conclusion. The Times also reported that the FBI partly dissented and thought there were some links, possibly between the gang and Venezuela's government, based on information that the rest of the country's spy agencies thought was not credible. The Trump administration reacted with alarm to the disclosure of the intelligence assessment. On March 21, a Friday, Todd Blanche, the deputy attorney general, who is also a former criminal defense attorney for Trump, issued a statement saying the Justice Department is going to open a criminal leak investigation, while also portraying the Times article as inaccurate.

Andy McCabe (26:33)

The following Monday, March 24, Mr. Kent sent an email to several people, including Michael Collins, then the acting head of the National Intelligence Council, attaching a copy of the Times article to his message and telling the team to look at it. Mr. Kent said it was necessary, quote, to rethink the assessment, according to multiple people who described it, not because the.

Alison Gill (26:57)

Times article had any new evidence.

Andy McCabe (27:00)

We don't like the way the Times wrote this story, so let's rewrite our analysis, okay? Quote, flooding our nation with migrants, and especially migrants. And of course, he puts quotes around the word migrant who are part of a violent criminal gang is the action of a hostile nation, even if the government of Venezuela isn't specifically tasking or enabling TDA's operations, Mr. Kent wrote.

Alison Gill (27:27)

Whoops.

Andy McCabe (27:27)

According to the people briefed on the email. Actually, no I can't. I don't know how you would think you would have an analyst that would make draw that conclusion. Mr. Kent's comment that the Maduro administration wasn't, quote, tasking or enabling the gang's operations appears to be a concession that Mr. Trump's claim might be doubtful.

Alison Gill (27:47)

I like the wording there.

Andy McCabe (27:49)

Yes.

Alison Gill (27:50)

The admission that they're full of it kind of points to the fact that Trump is full of it, I think is probably a more robust way to say that.

Andy McCabe (27:58)

But Mr. Kent doubles down on the idea that Venezuela had taken advantage of Biden era immigration policies to allow migrants, including gang members, into the United States.

Alison Gill (28:08)

Dates still doesn't mean that it's an incursion of my foreign government. Mr. Collins agreed to start work on a new council assessment. According to people familiar, Collins and Kent exchanged several emails on April 3 and April 4. That's a handful of days before that second assessment came out. But in one long email on April 3, Kent asked for changes, arguing that it wrongly, in his view, made it sound as if the Venezuelan government had no connections to the gang. Quote, let's just come out and say TDA leaders are given sanctuary in Venezuela as their gang members commit horrendous crimes in America, and then we can provide the context about our exact knowledge of relationships between TDA and the Venezuelan government. That's what Kent wrote. Kent was also mad that the memo didn't blame Biden. Quote, TDA didn't need logistical support from the Venezuelan government because Biden provided it for them. So again, he's admitting that they don't have any connection.

Andy McCabe (29:07)

So you want us to say that the Venezuelan government really supported and sent all these people, but what you really think is that it's Biden's fault?

Alison Gill (29:18)

Yeah, they didn't need to because Biden provided support to Trent.

Andy McCabe (29:22)

Were being invaded by Biden.

Alison Gill (29:24)

Oh, I think maybe you're right.

Andy McCabe (29:27)

This is just, it's crazy. It's so circular, it's ridiculous.

Alison Gill (29:31)

I know. He went on to say, I understand some may view this as political, but it's not. Oh, so you, you understand. Wow.

Andy McCabe (29:40)

I mean, saying it's not doesn't make it not. Well, you know, I'm telling you, this is not political. That's what he's saying there.

Alison Gill (29:48)

Now I get, get this, get this, Andy. According to the Times, Collins, the guy at the nick, actually made several edits to the memo before it was released April 7 at the direction of Kent. So what we actually got goes easier on the Trump administration than it did originally. In fact, Mr. Kent was happy with the final memo and he is the one that authorized its release via the FOIA request, which is hilarious because Todd Blanche launched an investigation into the leaks and then Tulsi Gabbard fired the guys at the nick. But it was Mr. Kent that said, this looks great, send it out now. They ended up firing, like I said, firing Collins and his colleague at nick. And as it turns out, it was the part of the FBI's dissent where the FBI was like, well, I mean, I guess not credibly. Some of the people in the Maduro regime who we don't have names for might have sent some people from trend to five different countries maybe that apparently made Kent be like, excellent, perfect. That backs us up. But it totally doesn't.

Andy McCabe (30:58)

No, and I, I don't know exactly what that reference is because it's not specified in the piece. But my, my strong suspicion is the FBI probably said, well, we have interviewed a few Trend Iragua members who are currently in custody and some of them have said that they had some kind of connection to Venezuelan government members on like a personal level. And those were likely statements, first of all, made while they're in custody, likely seeking cooperation, benefits from the government and are completely incorrupt. They can't be corroborated.

Alison Gill (31:34)

They were name dropping. And that's actually also in the article elsewhere. This article is really long and there's more to it. So check it out of the New York Times if you want. But yeah, they basically, that's where they got this information, was interviewing trend members in custody, purported trending who were like, you. You don't, you don't have any idea who I am. I know Brad Pitt. I know you know, they were just name dropping to see if they could cut a cooperation deal or get released. So I, I agree with you on that. And that was why the FBI added we, we can't corroborate any of this and it's not very credible. So anyway, I just thought it was pretty astounding that the chief of staff to the DNI asked for edits to, to a document produced by Nick because they wanted it to say something different and, and then fired the people who produced that document after releasing it themselves.

Andy McCabe (32:31)

This has been such a controversial thing. Well, for. Forever, but particularly in the post 911 world when this is exactly what happened when CIA analysts were pushed to conclude that Saddam Hussein had a role in planning and executing 911 to give the bush administration the, you know, more reason to justify invading Iraq. And it is now widely viewed as a massive mistake and an abrogation of their duty to just simply provide the facts and not move things for political reasons. So we thought we were kind of beyond all that. But as with a lot of things with this administration, some of the bad old stuff is all coming back in a really destructive way. And it seems using massaging, warping intelligence to suit, you know, political purposes is one of those things that's back now and bigger than ever.

Alison Gill (33:34)

Yeah. And with the consequence of jailing people unlawfully, many of whom have never been convicted of a crime and are there on accident.

Andy McCabe (33:45)

And this guy Kent is now up for the job of running the National Counterterrorism center, nctc, which is a huge job on the counterterrorism side. It's the one place that everybody goes to get conclusive analysis and US Government opinions on everything from who should be targeted overseas and kinetic strikes and the current state of affairs with all the most important and deadly terrorist organizations that we're constantly tracking. So we know that his qualification for having that job is going to be he's the, he's the chief politicizer of intelligence. I mean, I feel like that's a really bad spot for him or for us to have him there, but we'll have to see how that goes. It is a, it is a Senate confirmed position, so I expect he'll probably see some pushback from at least half the folks up there.

Alison Gill (34:39)

Yeah, I hope so. I hope so. And I'm assuming the members of that committee have this information and, and are well aware of it. Otherwise, you know, and actually, I probably will send them an email or two anyway to just let them know, hey, just listen to this episode of Unjustified, would you? All right. We have actually some behind the scenes information about what happened between agencies regarding Abrego Garcia as well. And it's also pretty damning for the government. So we want to cover that, but we have to take a quick break, so stick around. We'll be right back.

Andy McCabe (35:26)

Welcome back. Okay, we have a couple more stories about due process. The first is about the fight inside the Trump administration over what to do about Abrego Garcia. Now, this reporting also comes from the New York Times. A mistake had been made, that much was clear. The Trump administration had deported a Maryland man named Kilmar Armando Abrego Garcia to a prison in El Salvador, even though a judge had issued a ruling expressly prohibiting that from happening. But when the news reached the Department of Homeland Security, it set off a days long scramble and clashes among Officials in three different agencies over how to deal with what everyone knew had been an error. As it became clear that keeping it quiet was not an option, DHS officials floated a series of ideas to control the story. That raised alarms among Justice Department lawyers on the case.

Alison Gill (36:23)

Yeah, and, Andy, in normal times in the government, when you make a mistake, you just say, oh, and you fix it.

Andy McCabe (36:32)

Yeah.

Alison Gill (36:33)

And then you maybe do a hot sheet on how to not make that mistake again. But it's very common. And nobody's, you know, oh, I'm so embarrassed. Is my face red? Everyone's, oh, we made this error. All right. Fix it. And the end. But when you have an administration peopled with yes men to kind of an oligarch, for all intents and purposes, a dictator or a dictatorial, you know, leader, you don't acknowledge mistakes. You don't fix your mistakes. You double down and mistake harder. And I think that that's kind of what we're going to be taking a look at here. In the days before the government's error became public, DHS officials discussed trying to portray Abrego Garcia as the leader of a violent street gang, Ms. 13. Even though they couldn't find any evidence to support that claim, they considered ways to nullify the original order that barred his deportation to El Salvador. Specifically, they sought to downplay the danger he might face in one of that country's most notorious prisons. These were the plans. And in the end, a senior Justice Department lawyer, Arez Reveni, who counseled bringing Abrego Garcia back to the United States, was fired for what Attorney General Pam Bondi said was a failure to zealously advocate on behalf of the United States.

Andy McCabe (38:01)

This was an administrative error. James Percival, a DHS official appointed by Mr. Trump, wrote to his colleagues on March 30, quote, and in parentheses, not that we should say so publicly. Close parenthesis, close quote. Trisha McLaughlin, a DHS spokeswoman, said in a statement that Mr. Abrego Garcia's deportation was part of a, quote, highly sensitive counterterrorism operation with national security implications. That is. That is stunning. So as this guy is saying internally, this was an error. Don't say anything about it to anyone. Externally, they're saying, oh, highly sensitive counterterrorism operation with national security implications. Ultimately, three courts, including the Supreme Court, pushed back against the White House, ordering Trump officials to at least take steps towards freeing Mr. Abrego Garcia. But Mr. Trump and some of his top aides have taken a defiant stance, insisting that Mr. Abrego Garcia will not be Coming back to the United states.

Alison Gill (39:08)

Yeah. On March 28th, Mr. Percival, the DHS official, told his colleagues that they would be working to make sure that Abrego Garcia would not return to the United States. Quote, we're working to fix it so he doesn't need to be returned to the US that's what he wrote. That's. That stuns me.

Andy McCabe (39:25)

When I read that the first time, I thought, fix it? What is he even talking about? It becomes clear as you go further into the article, but in that moment, I'm like, how are you gonna fix this? He gonna have a, you know, he's gonna mysteriously slip on the soap in power and you don't need to bring it back anymore. I mean, like, what does that even mean?

Alison Gill (39:43)

But, well, buried between those words is the implication that they actually do need to bring him back to the United States. But we're going to fix it so we don't have to.

Andy McCabe (39:52)

Right. Also buried in there is that they could bring him back.

Alison Gill (39:56)

Yeah. Very good.

Andy McCabe (39:57)

Not anywhere do they say we can't bring him back because, you know, Bukele completely controls that place and he won't listen to anything we say. You don't see that in this article or on these emails anyway.

Alison Gill (40:08)

And if, and if I were Judge Boasberg, I would say, why would you say that you're working to fix it so you don't need to return him to the US if you're unable to do so in the first place?

Andy McCabe (40:16)

Yeah.

Alison Gill (40:17)

Wouldn't you just say, we don't have to fix, we can't get him back because we don't have custody.

Andy McCabe (40:23)

We don't have custody. The guy who has him won't answer our phone calls. We asked for him back. They said no, nothing. None of that.

Alison Gill (40:29)

Yeah. Now, Joseph Mazara, a Trump appointed official serving as the top lawyer at dhs, concurred. Quote, we're also trying to keep him where he is. Oh, does that mean you have control over him? Okay. Not everyone was on board, though. Over several days, Mr. Raveni, the Justice Department lawyer we talked about who had risen up the ranks over more than a decade with the agency, advised colleagues that they really needed to return Abrego Garcia at once. One of Mr. Raveni's chief concerns was that Judge Sinis would not look kindly on the fact that the US Government was keeping someone abroad who'd been wrongfully removed. Quote, I don't think the court will receive the suggestion it's fine to keep him there while we sort this out with any sympathy. He Wrote, and the longer he stays there, the more difficult it becomes for us to hold the line on this, that this is not our own custody, just paid through El Salvadorans. Wow. So there's that.

Andy McCabe (41:23)

Yeah. DHS officials said they wanted to solve the problem by trying to reverse the original order that should have kept Mr. Abrego Garcia from being sent to El Salvador in the the first place. And they wanted to do so while he was still in Salvadoran custody. So, of course, that was the only order that he had before this whole thing started was a judge, because of his asylum claim, had written, had signed an order saying he could be deported, but not to El Salvador, because the threat against his life and his family's lives comes from this. This gang, Barrio 18 in El Salvador. Okay, so Mr. Raveni did not agree, quote, how do we reopen his removal proceedings with him abroad? He asked. At that point, he won't have a valid, executable order. So what he's saying there is, first of all, you can't have a judicial proceeding to get rid of that no removal to El Salvador order. If the guy's not here, it's his. It's his thing. It's his. It's his order. And if, even if you went through that process, you would essentially invalidate the current order of deportation.

Alison Gill (42:40)

Right.

Andy McCabe (42:40)

It would. It would make. It would put everything back on the table again. And of course, he would have the right to be there arguing for himself, but.

Alison Gill (42:48)

Right.

Andy McCabe (42:49)

Yeah.

Alison Gill (42:50)

And then, you know, Reuveni said, actually the cleanest solution here is to bring him back to the United States. So what we're learning here is that because we knew, Mr. Raveni said in court. We knew. We know what he said in court, and now we're learning what he was saying behind the scenes. Like, what in the absolute h e hockey sticks are you talking about? We're going to remove the order. We're going to open up proceedings for him in El Salvador. What are you talking about? He's there by mistake. He needs to be brought home. And, like, you know, Annie, I'm beginning to see why Trump fired Reveni. Right?

Andy McCabe (43:24)

Yeah.

Alison Gill (43:25)

Already the government appeared to be highly alerted to any possible backlash publicly over the mistake. Mr. Percival, for instance, had asked his colleagues early on if the DHS spokeswoman had been informed about the comms implications of the case.

Andy McCabe (43:40)

About the confinement implications.

Alison Gill (43:43)

Yeah. Now, how does this look? Though Mr. Percival appeared to quickly realize that withholding the information was not tenable. A day after telling his colleagues that the government should not admit its Error. Publicly, he reversed course and suggested the Justice Department's response in court, quote, would be much better if we could own that we made a mistake, quote, but I guess we need to figure out whether we're allowed to say that, he said. Around the same time, officials at DHS began to float the idea internally that Abrego Garcia was a leader in Ms. 13, which is a violent street gang at the center of the president's deportation agenda. If that were the case, it might make leaving him in El Salvador not legal, but more palatable to the public.

Andy McCabe (44:25)

Yeah. Mr. Percival asked other officials at one point whether they could tell Judge Sinise that Mr. Abrego Garcia was an MS.13 leader. Mr. Raveni said that they could, but only if someone put their name to the accusation in a sworn court declaration. And I'm sure after reading that email every, all the recipients, like, turned their computers off and walked out of their offices.

Alison Gill (44:49)

Not me.

Andy McCabe (44:50)

No, not me. In the end, Immigration and Customs Enforcement officials backed away from the claims, quote. So far, I have found verified member, which is included, an ICE lawyer wrote to Mr. Percival. I have not found anything indicating leader, but I'll keep looking.

Alison Gill (45:07)

Wow. Wow. Yeah. And by the way, a verified member, per that ICE document, is anybody with a tattoo that has a crown or.

Andy McCabe (45:15)

A clock on it or a Chicago Bulls hat.

Alison Gill (45:17)

And Chicago Bulls hat. Right. And those crown and clock examples were taken from a 2016 Instagram from a tattoo artist in the UK on a couple of white dudes.

Andy McCabe (45:28)

Yeah.

Alison Gill (45:29)

Meanwhile, Andy, as we've been discussing, Ms. 13 gang members have played another crucial role in the agreement between El Salvador and the Trump administration to rent the United States space at the Seacoat Prison complex. As you know, Trump's Department of Justice has been dismissing charges against actual MS.13 gang members. And you'll recall that huge Pam Bondi press conference that you and I talked about.

Andy McCabe (45:53)

Yeah.

Alison Gill (45:53)

You texted it to me. You brought it up in one of the shows a few weeks back.

Andy McCabe (45:57)

Yeah.

Alison Gill (45:57)

About charges brought against this notorious ms.13 leader. And they.

Andy McCabe (46:01)

Yeah, that was here in Virginia. Yeah.

Alison Gill (46:03)

Made a big show out of it. And then they were dismissed. The charges were dismissed. And on May 22, according to Jose Oliveras, who's a journalist in Mexico for the Guardian and the Intercept, the government filed a motion to dismiss the charges against another MS.13 gang member named Antonio Aravela Chavez, citing, quote, sensitive and important foreign policy considerations. Aravelo Chavez was a key negotiator with Bukele's government in El Salvador, and he knows a lot about Bukele's pact, his deal, Bukele's deal with Ms. 13, someone I'm sure Bukele would like to silence. Now, I think that one of the reasons the Trump administration is so desperate to withhold that Seacoat prison agreement with El Salvador is because it might include an agreement to hand over people to Bukele that we dismiss charges against so that he can have them and deal with them as he pleases. And I think that's the crux of the government's claims of state secrets, privilege and deference to the executive office in matters of foreign affairs, or as they put it, sensitive and important foreign policy considerations.

Andy McCabe (47:13)

It certainly could be. And this, you know, we've literally been talking about this since the very first couple of episodes of Unjustified, even without the context of Abrego Garcia and all these other cases those early days, I thought, like, this is a really concerning thing. It started with the MS.13 guy who was pending trial being held in New York. I can't remember his name now, but he had been cooperating with the government for a while and allegedly telling them a lot of information about Bukele. His case got dismissed first. Then you had the guy you referred to is arrested here in Virginia. They had the big nonsensical press conference out at the FBI sub office in Virginia where Patel was there, Bondi, all these people, and they never mentioned the name of the person that they were pounding their chests about having arrested earlier that morning. His case has now been dismissed. And now we have this third one. This is a huge departure from the way the Department of Justice prosecutes what we used to call transnational criminal enterprise members, gang members, what they're now trying to sell us as terrorists, which is another whole problem, to finally to build cases, arresting these people, putting them in jail, you prosecute them, you go through the process, you give them their due process rights, you make the best case you can, and if you can convict them, you make them stay here and, and serve that sentence. That's what we do. These people are likely being handed over because Bukele wants to know what they said to us or what other information they have. But any one of them, if it's true that these are people who are entered into agreements with the Bukele government, what's to stop them from entering into another agreement, getting let out a C code and coming right back here and doing, committing the same crimes again?

Alison Gill (49:07)

So, yeah, speaking of that, I mean, that's why I wouldn't put it past him. I mean, the Trump and Pam Bondi made a deal with the son of El Chapo and the Sinaloa cartel.

Andy McCabe (49:15)

Yep.

Alison Gill (49:16)

To here's a bunch of money and bring your 17 friends and family over to the United States to live in exchange for, you know, this particular.

Andy McCabe (49:26)

Another. Another narco kingpin. Yeah, it's. Yeah. I just feel like this is a really disturbing departure from the way that DOJ has always done this business. And yeah, when you have an oligarch.

Alison Gill (49:44)

Making a deal with oligarchs, cartel leaders are oligarchs. I mean, this is what you get.

Andy McCabe (49:50)

Yeah, yeah, yeah.

Alison Gill (49:52)

Very frightening to me. And then you're asking to edit and falsify intelligence findings to smooth it all.

Andy McCabe (50:02)

Over, make it all look good on the surface.

Alison Gill (50:04)

You can justify what you're doing as legal. All right, we've got just a couple more quick stories and of course, listener questions. By the way, if you have a question, there's a link in the show notes where you can click on to submit your questions to me and Andy. Excuse me, Andy and me. And we'll be right back with more, more information, including a federal judge in Boston going after the Trump administration for yet another problem with renditions to a third party country. Stick around. We'll be right back.

Andy McCabe (50:42)

Welcome back. Okay, just a couple more stories before we get to listener questions. First from the Times. A federal judge in Boston said on Wednesday that the Trump administration had violated an order he issued last month barring officials from deporting people to countries not their own without first giving them sufficient time to object. There's that pesky due process.

Alison Gill (51:07)

I would have gotten away with it if it weren't for that pesky due process fella.

Andy McCabe (51:10)

Dern. Okay. The finding by the judge, Brian E. Murphy, isn't it classic? A judge in Boston has the name Brian E. Murphy. I mean, of course he does. This is like right out of a. A movie. Brian E. Murphy was one of the strongest judicial rebukes by the administrator that the administration has faced so far in a series of contentious cases arising from its sprawling deportation agenda. It was not immediately clear what punishment, if any, Judge Murphy intended to meet out against the administration or those who took part in the operation. But he asked for a list of names of everyone involved so he could notify them that they might face criminal contempt penalties. That's what I'm talking about.

Alison Gill (51:50)

Yeah.

Andy McCabe (51:50)

For a full report on this hearing in the case, we recommend heading to Lawfare for details and to support their work if you're able.

Alison Gill (51:58)

Yeah, and he was real mad, too. He I think he used the word contempt like a hundred times in that particular hearing. He's like, yeah, yeah, yeah, yeah. And then I think he's learned a little bit of a lesson from previous attempts of at this administration. He's like, all right, so what does this look like? What does due process look like for these folks who are now in Djibouti, stopped on a plane, stuck there on their way to war torn South Sudan and the country that none of them hail from, to have, you know, a fear, a rational or a reasonable fear hearing. I can't remember what it's called. Something, a fear hearing. I talked about it with Adam Classfeld, but he was like, I'm not just gonna let you figure out what reasonable is. And they wanted to go, the, the government wanted to go by some old case that I had never heard of. And he's like, look, we've got plenty from the, this Supreme Court from last couple of weeks saying that, that 24 hours is not enough notice. And you gave them 17. So no, it's not reasonable. This is contemptuous. Give me a list of all the people that were involved in this after the Supreme Court ruling came down saying 24 hours is not sufficient notice. I want names. And we need to sit here and figure out what the remedy is. Are you going to give them a hearing down on the plane in Djibouti? You, you got to keep them for two weeks there. So to give them enough time, are there going to be translators to, for them to speak to council? Like, I mean, he got down into the nitty gritty, which hasn't really happened in a court before at the district level. They've just been like, well, just give meaningful notice. You can figure out what that is. They, they aren't taking the government's word for it anymore.

Andy McCabe (53:34)

Yeah, this one is, is crazy because in one of the earlier, maybe the first hearing he had on this was when the police planes were allegedly in flight or taking off or whatever. And he said, turn them around or stop them and make sure you tell the pilots that they could be held in criminal contempt if they continue. So I wonder if that's why the, the plane ended up stopped in Djibouti rather than just like, you know, damn the torpedoes going all the way to Khartoum. And then the most recent hearing, he was really focused on like the condition of the detainees. Are they like shackled to their seats in this plane day in, day out? Do they, do they even get off the plane? You know, do they get to eat like he, he included is in his order that they must be held under humanitarian conditions or something like, something like that. I don't remember the phrasing, but yeah, he's really, he's going all in on this and good for him.

Alison Gill (54:26)

Yeah, he's pretty mad. Next up, quick story from NBC. The Justice Department is dismissing lawsuits against a number of local police departments around the country, ending investigations into pattern and practices of unconstitutional behavior that, you know, violates civil rights. And that's according to officials on Wednesday. Andy, you and I saw this coming a mile away when Harmeet Dhillon took over the civil. Yeah, the rights unit at the Justice Department. The, the, you know, these are all like when they look at, investigate Louisville and Memphis and police departments for, you know, bad behavior and then issue consent decrees that they have that these departments have to follow. The pullback from police oversight comes amid a major change at the Justice Department Civil Rights Division since the start of the Trump administration and the confirmation of Harmeet Dhillon, Trump's pick to lead the division. Officials said lawsuits filed during Joe Biden's administration by Merrick Garland against two city police departments, Louisville, Kentucky and Minneapolis, would be dismissed. They've also canceled active consent decrees. Other investigations into policing in Phoenix, Trenton, New Jersey, Memphis, Tennessee, Mount Vernon, New York, Oklahoma City and Louisiana State Police will also come to an end. They're just ending them.

Andy McCabe (55:37)

Not interested in that work anymore. Not interested in forcing the Voting Rights Act. It's just like the, they just should change the name to the no longer Civil Rights Division or something like that because it's a, it's a 180 degree turnaround from why that division was created, you know, in the early 1960s for the purpose of securing voting rights for black people in the South.

Alison Gill (56:01)

Yeah.

Andy McCabe (56:02)

Okay. So also from cbs, we get the Justice Department is shaking up the priorities for a popular grant program that provides millions of dollars in aid to budget strapped local police departments across America. According to public documents reviewed by CBS News. In a fact sheet for the Community Policing Development Micro Grant program, the Trump administration eliminated language that encouraged police agencies to seek federal money for initiatives to help underserved populations build trust in the police, boost diversity in police departments, and support community violence intervention.

Alison Gill (56:39)

Yep. The instructions to local police departments now for funding in 2025 mark a noticeable shift from the guidance issued by the DOJ during the Biden administration. Because the 2024 guidance under the Biden administration prioritized efforts at building trust and legitimacy with communities and community violence intervention initiatives, which include efforts to combat racism and Trauma and poverty and other triggers to. Instead, this administration lists immigration and border security, violent crime prevention, and uplifting the image of the law enforcement profession as, unless you're a Capitol police officer, I guess, as programs that are priorities for the highly sought after grants which are administered by the Justice Department's Community Oriented Policing Services Division. So they're going from, you know, community outreach, mental health, equity, inclusion, a diverse, you know, policing, etc. To we want the cops to look good and immigration. That's where the grants are going to be focused from now on.

Andy McCabe (57:43)

Yeah, and really this was the only hope for the police organizations that took advantage of this funding. This is the, really the only chance they had of doing that because the budgets are so tight in law enforcement across the board, there's just no, there's no room for things like this that aren't directly contributing to additional arrests. Yeah, there's no opportunity to try to do like de escalation training. There's no opportunity to do, to like seek alternative results and like, look at all the calls the police officers have to take regarding, you know, people and mental health in the midst of a mental health crisis. There's been so much talk about like trying to think about better, less confrontational ways to resolve those incidents. Forget it. You forget all that.

Alison Gill (58:34)

Right.

Andy McCabe (58:35)

I had a, there's no money, it ain't happening.

Alison Gill (58:37)

I had a woman on from the Urban Peace Institute on the beans who was afraid that their grants were in jeopardy. And this pretty much confirms that they are. Unless you're doing, unless you're helping ICE out, you're not going to get any funding.

Andy McCabe (58:52)

Yeah, Very, very, very different priorities now. All right, shall we hit some questions?

Alison Gill (58:58)

Yeah. Time for some questions. Who do we have sending in questions today?

Andy McCabe (59:02)

Well, we had a lot of people sending them in, would love to go through all of them, but of course we don't have time for that. But so I picked two that I thought were pretty interesting and touch on things that you and I have talked about a lot. So first one comes from Aaron. Aaron says, I have a question about Jack Smith and Merrick Garland. Do you think this administration is just picking low hanging fruit to harass the silence from Ed Martin Bondi and the merry band of sycophants about Jack and Merrick is deafening. Do you think that they are trying to get momentum with easier cases before touching that flame? It seems they're afraid with these two. What are your thoughts as to why the silence?

Alison Gill (59:40)

Aside from the obvious idiocy of it all?

Andy McCabe (59:43)

Aside from the obvious idiocy well, that.

Alison Gill (59:46)

Was going to be my answer, Aaron, so I don't, I don't really have anything. Well, I think that they have kind of sort of peripherally gone after Jack Smith by attacking lawyers and law firms where lawyers who have worked with Jack Smith work at same with Mueller. Right. They, they went after a law firm that Weissman, who worked for Mueller years ago, worked at for a minute, but now hasn't worked there in years. So I think they're sort of peripherally, peripherally kind of coming, coming at this. I don't think they'll go after Merrick Garland necessarily, because I think enough people on the left already don't like that guy. And I don't think they need to go after him the way that they would probably need to go after, like, Jack Smith or Jim Comey or, you know, anybody else who, who might be within earshot of my voice that I could be talking to right now that, you know, might have had more direct involvement in investigating Donald Trump. So because, you know, Merrick Garland notoriously did not appoint a special counsel until November 2022.

Andy McCabe (60:58)

Yeah, yeah, I think, I think that's true. I think also, Aaron, I would say patience, have patience, because we are still in early days here, and I do feel like as we get deeper and deeper into this administration, the revenge actions will grow. It's not the kind of you would normally like. Oh, they come in all full of, you know what and vinegar and, and then they'll kind of tail off. That's not going to happen here. It's the other way around because they have things that they need to get done politically up on the Hill. They know that some of these moves will probably provoke a lot of criticism. And so they, I, I, I feel like they're holding their fire on some of this stuff right now to get past, like, the big beautiful bill and other things they want to get done. And they're really focused on immigration. So this, these things may emerge as we go forward as, as Ed Martin comes up with his list of whatever he's going to do to people he can't even charge.

Alison Gill (61:56)

Right.

Andy McCabe (61:56)

A lot of talk online about he's got some lists that he's supposedly coming out with soon, so who knows? We'll see if there's more developments there. But I would say we are. Well, Ed, I'm sorry, not Ed. Jack and Merrick are definitely not out of the woods yet.

Alison Gill (62:15)

That's a good point. That is a good point.

Andy McCabe (62:18)

All right, so last one is from Chuck. Chuck says AG and AM. Your clarity and erudition on subjects of national importance is hugely appreciated. Please keep it up. My question is, since the Constitution defines birthright citizenship and other provisions, and it defines the means of modifying the Constitution by the amendment process, why are Trump's EOs or other administration's unconstitutional actions not simply dead in the water? It seems to me that the only thing to determine is whether the said action is or is not constitutional. If it's not, it's done and has no legality. Why. Why not have that question resolved immediately and then forego all the litigation, stays, injunctions, what have you?

Alison Gill (63:03)

Well, the only way to answer that question is through litigation, which comes with stays and injunctions and all of that jazz. Dead in the water. Somebody has to dub it Dead in the Water. And the someone who does that is ultimately the Supreme Court.

Andy McCabe (63:20)

Yeah, and I guess the, the thing that I would highlight to you here, Chuck, and it, and it's kind of an unsatisfying answer, but it's super important, is what you're frustrated about. And I, I get it, it's slow, but is the process. And the process is really important. The process is you can only bring an action if you have, you know, a stake in the matter, and you have what we call standing, and you can only bring it to a court that actually has jurisdiction over that issue and that decision. And the first thing that you can do is get a stay to make the government stop doing the thing that you allege is illegal, but then the government is allowed to fight that, file their own appeals when they don't get a judgment that they like on just the issue of the stay. So all this takes a long time, and it seems to infinitely delay the decision on the underlying substantive issue. And I know that's frustrating, but the process, and each side's free and fair access to it is what makes us a democracy. So we have to really, you know, in the words of Tim Snyder, to support our institutions. One of those institutions is the system of justice. We have to support it and embrace staying with the normal order, because we don't. We don't break it for ourselves, and we don't break it for the tyrants on the other side. And it's, it is that maintenance to the standard, staying true to the principles of justice and obeying court orders even when we don't like them. That's what keeps us from veering off the cliff into tyranny. And even though it takes a long time, hang in there with us. At least we'll will make you laugh talking about it on Unjustified.

Alison Gill (65:08)

So we don't cry. Right.

Andy McCabe (65:09)

Yeah, exactly.

Alison Gill (65:11)

Yeah. The Alien Enemies Act Proclamation was issued two months ago and we still don't have a Supreme Court ruling on the legality of the invocation of the Alien Enemies act, but we should be getting one soon. Even though James Ho really, really, really, really, really doesn't want to do it.

Andy McCabe (65:30)

It.

Alison Gill (65:30)

He's good. He has to do it on an expedited basis at the Fifth Circuit, which will ultimately make its way up to the Supreme Court.

Andy McCabe (65:37)

Yeah.

Alison Gill (65:38)

And then we've got all these contempt proceedings and in order to, you know, get into contempt proceedings, you have to have discovery, and in order to get into discovery, you have to resolve threshold issues like. Yeah. Privilege, for example. These are just, this is just the order of operations and the normal order and it's what we're trying to preserve. So it would be, it would be weird to circumvent due process to seek due process.

Andy McCabe (66:03)

Yeah. Birthright citizenship is another great example. Like, almost everyone conservative or liberal legal, you know, pundits and stuff, will say it's. The order is almost 100, not 100, but like everyone says it's going to be declared unconstitutional. It should be. It's clearly unconstitutional. But the Trump team, which they're the champions of delay, if you listen to Jack, you totally know that they did a masterful move here by saddling the issue with this other issue of, quote, unquote, universal injunctions challenging the judiciary's ability to issue an injunction and stop the unlawful, the alleged unlawful conduct from taking place across the country. And by doing that, they just, you know, the Supreme Court bit on that in the same way they did the underlying legality of the birthright citizenship decree. So now we have to, like, work through both of those.

Alison Gill (66:59)

Yeah. And it's a bad vehicle. And, and the liberal justices recognize it as a bad vehicle, just as they recognized the immunity ruling as a bad vehicle to make a rule for future presidents.

Andy McCabe (67:09)

Yeah.

Alison Gill (67:10)

When they should have just been considering that particular case, they, they blew that out of the water and, you know, gave double barrel middle fingers to dicta and just went on their own way to, to create a rule based on no need to do that due to do so. So, so that's kind of. I mean, we also have to. A lot of this has to do with who's sitting on the Supreme Court right now.

Andy McCabe (67:33)

Yeah.

Alison Gill (67:34)

But, yeah, here we are anyway.

Andy McCabe (67:35)

But we don't. The way to respond to all those frustrations is to stay in the fight. Is not to upend the boat and say, screw it. Let's just start ruling on these things by fiat. We have to be. If you're concerned about justice and you're concerned about the future, the answer is to hold tight to the process and insist. Insist that everyone follows it.

Alison Gill (68:03)

Right. Like, the reason that we're all shocked and disgusted at the arrest of Roz Baraka, for example, is because they didn't do a thorough investigation and bring evidence and interviews to a grand jury and then. And go through all of the motions that they're supposed to go through. They just arrested and then tried to figure it out later, ended up dropping the charges because they knew they didn't have anything. That's what people wanted Merrick Garland to do to Donald Trump, but that's not how it works. Donald Trump would have walked just like Ross Baraka walked. And. And without all of that process that has to go into it now, I mean, we can talk about why it took longer than it probably should have, but different issue for a different issue for a different day. But, you know, to say, you know, that's why we aren't like, why. That's why Hillary locked. Shut down the. Lock him up chance at the. At the dnc, like, that's not us. And, And Kamala Harris kept saying, I'll leave that up to the Justice Department. Right here, right now, we're talking about something else. So, yeah, it's important to apply these things to both sides because they got to be the same.

Andy McCabe (69:10)

That's what we're fighting for. We want everybody to be treated fairly. Right now, we're sliding into a place where they're not, and so we have to stick with the concept of fairness. So, Chuck, I get your frustration. I totally frustrated. Relate to you, bro. We were all frustrated, but we gotta hang in there.

Alison Gill (69:28)

Although I do think some of these judges could get to contempt faster. But, like, the court schedule, the fact that we just have so many, so few judges on the bench, and they.

Andy McCabe (69:40)

All know in a normal contempt issue comes up, like in a civil case or something like that, they just. They just slice and dice it. But they know whatever, whoever loses is taking it to the circuit court, then they'll. They're going to hear the issue, and whoever loses there is probably going to push it to the Supreme Court. So everybody's trying to be very careful.

Alison Gill (69:57)

I just wish they sliced and diced at the same speed, you know?

Andy McCabe (70:02)

Yeah, yeah.

Alison Gill (70:02)

For any. For anyone and everyone, that would be nice because that. That gives the rest of us a feeling that there is an equal justice under law. People get more deaf. People like Trump get more deference and more time, more appeal. And that's just. That's just very unfair. As Judge Ho said, lady justice might as well not be blindfolded anymore. What is this, a Denny's? Sorry. I can't get over what. I can't get over what he wrote.

Andy McCabe (70:28)

I want to play my tiny violin for him. Every time I hear that line.

Alison Gill (70:33)

Yeah, why don't you spend a day in Seacoat, Judge Ho? Yeah, and then let us know how that goes.

Andy McCabe (70:38)

Or how about this? Spend a day in a Raymond court and pick your district. I mean, like, that's where, you know, in your lofty tower at the fifth Circuit.

Alison Gill (70:49)

I can't be expected to answer things by the crack of noon. Yeah, I know.

Andy McCabe (70:53)

I've arraigned plenty of people on Saturday morning. You know, when I was an agent, I'm not the judge. But you take, you know, you. People get picked up, people are working. There's a judge on that day, you get to heard, they go, you know.

Alison Gill (71:05)

So it's crime doesn't take a break.

Andy McCabe (71:07)

That's right. 24 7. It's like a Denny's.

Alison Gill (71:09)

It's like a Denny's. Crime is like a Denny's. I think I'm gonna make a. I.

Andy McCabe (71:14)

Think we have a new title for today's episode.

Alison Gill (71:18)

All right, I'm writing it down, everybody. We're gonna be back in your ears. Gosh, next week. I'm sure nothing will happen between now and then.

Andy McCabe (71:26)

Another slow week.

Alison Gill (71:27)

Yeah, it'll be another slow week. And I'm sure it'll just be like a 10 minute episode next time. At least we can only hope, but I bet the opposite be true. Do you have any final thoughts?

Andy McCabe (71:38)

No, I've. I've exhausted all my thought. Yeah, buckle in.

Alison Gill (71:43)

All right, we'll see you next week. I've been Allison Gill.

Andy McCabe (71:45)

And I'm Andy McCabe.

Alison Gill (71:47)

Unjustified is written and executive produced by Alison 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 just justice. For more information, please visit mswmedia. Com.