Podcast Summary: UnJustified – Episode 21: Defy. Deny. Disparage

Release Date: June 15, 2025

Hosts: Allison Gill & Andy McCabe

Introduction

In Episode 21 of UnJustified, hosts Allison Gill and former FBI Deputy Director Andy McCabe delve deep into the troubling actions of the Department of Justice (DoJ) under the Trump administration. The episode, titled "Defy. Deny. Disparage," explores the erosion of civil liberties and the rule of law, focusing primarily on the case of Kilmar Abrego Garcia. Additionally, the hosts examine broader issues affecting the DoJ, including legislative changes, court rulings on the Alien Enemies Act, and internal dysfunctions within the department.

Kilmar Abrego Garcia: Criminal and Civil Cases

The episode begins with a detailed discussion of Kilmar Abrego Garcia's legal battles. Abrego Garcia has pleaded not guilty to two charges of smuggling migrants and is seeking bail pending his trial.

• Criminal Case Overview

  Andy McCabe outlines the indictment:

  "[Abrego Garcia] and others conspired to bring undocumented aliens to the United States from countries such as Guatemala, El Salvador, Honduras, Ecuador, and elsewhere, ultimately passing through Mexico before crossing into Texas" ([00:08]).

  Giles highlights inconsistencies in the prosecution's case:

  "The DHS Referral report in 2022 states that Abrego Garcia told officers he was coming from Texas, but the indictment claims he lied about being from St. Louis, which contradicts the initial report" ([19:05]).

  The hosts express skepticism about the strength of the case, noting potential procedural issues and the reliance on co-conspirator testimony.

• Civil Case and Sanctions Motion

  Abrego Garcia's legal team filed a civil case against the government for failing to facilitate his return, as mandated by the Supreme Court. When the DoJ attempted to dismiss the discovery proceedings as moot after Abrego Garcia was returned, the lawyers countered by filing a sanctions motion for the government's non-compliance.

  Allison Gill emphasizes the government's blatant disregard:

  "The government flouted rather than followed the orders of this court and the United States Supreme Court" ([30:44]).

  McCabe adds:

  "The indictment doesn't provide strong, corroborative evidence, making it difficult for jurors to trust the prosecution's narrative" ([25:09]).

Legislative Changes and Contempt Provisions

Allison Gill and Andy McCabe discuss recent modifications by Senate Republicans to the contempt provisions in the budget reconciliation bill. These changes make it nearly impossible for movements to file civil motions for preliminary injunctions or temporary restraining orders without substantial financial bonds.

• Impact of $1 Contempt Provision

  Gill explains the original intent to allow $1 bonds:

  "Nothing stopping judges from charging a $1 bond... They modified the language to say it has to cover the actual value of the proceedings" ([06:22]).

  McCabe critiques the implications:

  "This only reserves temporary restraining orders and preliminary injunctions for people who have money and means" ([07:31]).

Alien Enemies Act Proclamation Rulings

The hosts highlight a significant judicial development where the Western District of Texas became the fourth court to deem Trump's invocation of the Alien Enemies Act unlawful.

• Judge Brion Briona's Ruling

  On June 9th, Judge Brion Briona issued a 56-page ruling rejecting the proclamation on three main grounds:

  1. Definition of Invasion and Predatory Incursion: The court held that these terms require a militarized effort aimed at conquest, which the proclamation does not meet.

  2. Sovereignty of Venezuela: The proclamation does not recognize Trende Aragua as a legitimate foreign nation or government.

  3. Voluntary Departure: The proclamation fails to provide for voluntary departure as required by the Alien Enemies Act.

  Gill summarizes:

  "The proclamation doesn't allow for voluntary departure as required by the Alien Enemies Act" ([43:42]).

• Fifth Circuit and Supreme Court Involvement

  The episode touches on the ongoing appeals, mentioning Judge Ho's reluctance to define due process requirements and the Supreme Court's pending decision on the Act's legality and necessary procedural safeguards.

DOJ's "Rubber Room" and Internal Dysfunction

One of the most alarming segments of the episode covers the DoJ's internal restructuring, leading to the creation of the "Rubber Room," where seasoned lawyers are sidelined.

• Inside the Rubber Room

  Reported by CBS, the Rubber Room is depicted as a sham task force where elite civil rights, environmental, and national security lawyers are relegated to menial tasks, effectively sidelining them from meaningful work.

  Tom Mariani, an environmental litigator, describes his resignation:

  "I can't tell you how much personal distress I feel over how these folks were treated" ([49:49]).

  The hosts discuss how this tactic mirrors previous administrations' efforts to stifle experienced legal professionals, undermining the department's effectiveness and integrity.

FOIA Lawsuit on Jack Smith's Report

Allison Gill and Andy McCabe also address the Justice Department’s attempt to dismiss a Freedom of Information Act (FOIA) lawsuit seeking access to Volume 2 of former Special Counsel Jack Smith's final report on the Mar-a-Lago investigation.

• DOJ's Motion to Dismiss

  The DoJ filed a motion to dismiss the lawsuit filed by The New York Times for failing to expedite the processing of their FOIA request. Gill echoes skepticism about the administration's transparency:

  "I sure would like to see volume two of the Jack Smith Report if it hasn't been shredded and burned" ([51:18]).

  McCabe criticizes the DOJ's evasive tactics:

  "Failing to answer and missing deadlines are not the most effective ways to defend against FOIA requests" ([51:39]).

Listener Questions: Authority of ICE Agents

The episode concludes with a listener question addressing the authority and conduct of Immigration and Customs Enforcement (ICE) agents.

• Response to Listener Inquiry

  Gill and McCabe elaborate on the training and operational protocols of ICE agents, countering misconceptions:

  • Training and Identification: ICE agents undergo federal law enforcement training but are not required by law to visibly display their badges or wear identifiable uniforms, leading to concerns about their intimidating presence.

  • Armed Status: The hosts discuss the implications of ICE agents being heavily armed, comparing their tactics to militarization seen in broader law enforcement contexts.

  Gill expresses concern over the psychological impact:

  "These people are decked out more than... veterans who've served tours in Afghanistan... that's what frightens" ([55:21]).

  McCabe adds:

  "This climate of fear is detrimental to community trust and cooperation with law enforcement" ([56:58]).

Conclusion

In this comprehensive episode, Allison Gill and Andy McCabe shed light on the systematic undermining of legal protections and civil liberties by the Department of Justice under Trump's administration. Through meticulous analysis of high-profile cases, legislative changes, and internal departmental issues, the hosts provide a sobering look at the challenges facing the rule of law and democratic institutions.

Notable Quotes:

• Allison Gill ([00:45]): "This is unjustified."
• Andy McCabe ([13:59]): "It's hard to come up with that sort of minuscule level of evidence when there's essentially no crime."
• Allison Gill ([25:44]): "This could be..."
• Andy McCabe ([30:44]): "She [the government] put the lie to its previously feigned powerlessness to comply with this court's injunction."
• Allison Gill ([49:49]): "This is a hard thing to talk about..."
• Listener Question ([52:30]): "What laws govern their conduct? Can they be so heavily armed?"

Credits

UnJustified is written and executive produced by Allison Gill with additional research and analysis by Andy McCabe. Sound design and editing are by Molly Hockey, and art and web design are by Joelle Reader at Moxie Design Studios. The theme music for UnJustified is written and performed by Ben Folds. The show is a proud member of the MSW Media Network, a collection of creator-owned independent podcasts dedicated to news, politics, and justice.