← UnJustified
UnJustified
Ed Martin Is Doing It Wrong
01:02:11
U.S. attorney Ed Martin personally submitted a seizure warrant that was rejected by a U.S. magistrate judge in D.C. Kash Patel ordered FBI officials to relocate 1,500 employees from Washington DC to cities with high crime rates including Minneapolis, Detroit and Cleveland, at a cost of over $100M. Attorneys for New York City Mayor Eric Adams asked a federal judge Wednesday for an outright dismissal of his criminal corruption case, citing alleged misconduct by prosecutors. President Trump said that he would strip security clearances from lawyers at a prominent Washington law firm aiding former special counsel Jack Smith, and end any federal government work the firm may have.
Loading summary
Transcript113 lines
- [00:01]
Allison Gill
MSW Media.
- [00:08]
Andy McCabe
Interim US Attorney Ed Martin personally submitted a seizure warrant application without any other prosecutors in his office. That was rejected by a U.S. magistrate.
- [00:19]
Allison Gill
Judge in D.C. and on Friday, his first day on the job, Kash Patel ordered FBI officials to relocate 1500 employees from Washington, D.C. to cities with high crime rates, including Minneapolis, Detroit and Cleveland, at a cost of over $100 million.
- [00:36]
Andy McCabe
Attorneys for new York City Mayor Eric Adams asked a federal judge Wednesday for an outright dismissal of his criminal corruption case, citing alleged misconduct by prosecutors.
- [00:47]
Allison Gill
And President Trump said Tuesday he would strip security clearances from lawyers at a prominent Washington law firm that was aiding former special counsel Jack Smith and end any federal government work the firm may have. This is unjustified. Hey, everybody. Welcome to Unjustified. It is Sunday, March 2, 2025. I'm Allison Gill.
- [01:13]
Andy McCabe
And I'm Andy McCabe. Boy, Allison, another week with nothing to talk about.
- [01:17]
Allison Gill
Yeah, I know. I think we're going to see if we can do what we can do to try to keep this episode under an hour because we've been failing miserably at it.
- [01:25]
Andy McCabe
Miserab. Miserably. But my gosh, it's a fire hose of stuff that's happening right now and a lot of it still right squarely in the lane of DOJ and FBI.
- [01:36]
Allison Gill
Yeah, absolutely. And we're going to get to Kash Patel and his brand new deputy, Dan Bongino in a moment, as we promised last week, because last week we had a full show already. But first, we have this blockbuster story. The Washington Post FBI agents this weekend questioned Environmental Protection Agency employees regarding a Biden administration grant program for climate and clean energy projects, escalating that criminal probe that already caused one veteran prosecutor we talked about last week to resign. And that's according to two people familiar. The move came after the Justice Department in recent weeks took unusual steps to advance this investigation. Having A Trump appointed U.S. attorney submit a warrant request when career prosecutors were unwilling and seeking prosecutors in other offices who might agree to participate in the case. That's according to people familiar speaking on the condition, of course, of anonymity to disclose internal deliberations about ongoing criminal investigations.
- [02:39]
Andy McCabe
At issue are grants totaling $20 billion under the Greenhouse Gas Reduction Fund, a program established by President Joe Biden in his signature 2022 climate law. The fund seeks to leverage public and private dollars to invest in clean energy technologies such as solar panels, heat pumps and more, including through community lenders in low income areas. The Trump appointed EPA administrator has alleged publicly that the money was awarded with little oversight and said the agency would try to claw back that money from Citibank, which was tasked with dispersing the funds. Now, the administration ran into its first roadblock in that effort last week when a senior career Prosecutor in the U.S. attorney's office in D.C. resigned rather than carry out the administration's demand to freeze the funds over allegations of potential wire fraud. But the investigation did not end there, according to people familiar with the matter.
- [03:37]
Allison Gill
Yeah. Interim US Attorney Ed Martin personally submitted a seizure warrant application without any other prosecutors in his office. That was rejected by a US Magistrate judge in DC who found that the request and the accompanying FBI agent affidavit failed to establish a reasonable belief that a crime had occurred. That's according to three people. And meanwhile, Acting Deputy Attorney General Emil Bove's office approached at least one other U.S. attorney's office in the southeastern United States to try to launch a grand jury investigation and seek a court ordered bank freeze. But prosecutors in that office again refused the warrant request. It's not clear whether more evidence has since been obtained or if a warrant was granted elsewhere. But at least three groups, three that had been awarded money, said their accounts have been frozen and the bank won't tell them why. And I wanted to pause here in the story because as I'm reading this, I'm reminded of the arguments in the immunity hearing. Right. The oral arguments in front of the Supreme Court, because when Trump was arguing for immunity, his main concern at least Sauer was saying, who's now the Solicitor General. He was saying he's warning about future gangs of rogue prosecutors going after former presidents all the time, and it would destroy their ability to be president. And justice. Sotomayor reminded us of all of the guardrails within the justice system itself that prevent rogue prosecutions and kind of moot the need for presidential immunity. And we're actually seeing those guardrails hold. Like all of these prosecutors officers are like, I'm not signing that. And the judge, at least one judge, is like, I'm not issuing that warrant. But they did manage to somehow freeze some of these accounts.
- [05:29]
Andy McCabe
Yeah. This is amazing because in addition to showing us that, you know, third time is apparently not the charm or the, you know, the do it yourself approach, not working out for Ed Martin here. It's almost like the rogue prosecutors that he was talking about in that, in that argument in the immunity case. We are seeing that a little bit here. Not the prosecutors who are rejecting the unlawful requests, but the prosecutors desperate to try to rip back some money that was dispersed according to law These are legally allocated funds that, that the Biden administration had every right to disperse according to whatever standards and practices they were using while Joe Biden was president. And now you have these prosecutors just like, I don't know, maybe desperate to show some government savings or something, trying desperately to pull this stuff back. It's really, really outrageous.
- [06:30]
Allison Gill
Yeah. And it shows that if some rogue prosecutor in the future tries to go after a former president, you know, that didn't do anything wrong, that they aren't going to be very successful because we do have judges in the process. And then after that we've got pre trial motions in the process. And after that we've got, well, before that we've got grand juries. And then after that we've got pet juries. We have trials. Right. Like everything. And then we have an appeal process. And that's what Justice Sotomayor was getting at. Like, what are you talking about rogue prosecutors? They, I mean, they were really only talking about themselves.
- [07:06]
Andy McCabe
Yeah, yeah. As it turns out, that's, that's, it's, it's clear why they had a, such a vision of that happening because it was self fulfilled. Anyway, the story goes on to say Stefan D. Casella, a former federal prosecutor whose writings on asset forfeiture and money laundering are used widely by judges, prosecutors and defense attorneys, said the moves were.
- [07:29]
Allison Gill
Atypical, quote, it's atypical way to lawyer it up there. Stefan Casella.
- [07:37]
Andy McCabe
One way to summarize it, Stefan. Okay. Stefan said, it's certainly unusual for any case to involve two different U.S. attorney offices declining a case for lack of probable cause and to have the Department of Justice continue to shop it. That's very unusual and certainly it would be unusual to continue to shop it after a judge turned it down. He said, you can't seize a truck, you can't seize a backpack, you can't seize a pair of socks without probable cause.
- [08:06]
Allison Gill
Do you know anybody else that they were shopping grand juries to try to get an indictment on? I missed that.
- [08:13]
Andy McCabe
Yeah. You know, that's a little sus. As my daughter would describe. Doesn't happen often, but when it does, you know there's something untoward behind it.
- [08:25]
Allison Gill
Yeah. Or you're Andy McCabe. Yeah, that's true. It does happen. The DOJ initiated FBI investigative activity was confirmed by one person briefed on the matter and a second with direct knowledge. If the FBI was so unwilling to go down to Mar a Lago and open a locked closet, but they're willing to shop this around, that just blows my Mind?
- [08:46]
Andy McCabe
Yeah.
- [08:46]
Allison Gill
One said agents sought information regarding spending under two components of the Biden Green Bank Grant initiative, the National Clean Investment Fund and the Clean Communities Investment Accelerator programs, which seek to finance clean technology and clean energy products. Damn them, the criminals, you know. Citibank, which holds the accounts for the programs, declined to comment for this article, as did the FBI's Washington Field Office. A Justice Department spokesman said, per our usual policy, the department declines to confirm or deny the existence of an ongoing investigation. Unless you're Ed Martin and you're tweeting.
- [09:23]
Andy McCabe
What about the existence of a. Of an investigation that's been shot down by a judge and two prosecutors? Does that fall into one of those categories? I don't know.
- [09:31]
Allison Gill
Yeah. And an EPA spokesperson repeated Department Administrator Lee Zeldin's allegations.
- [09:37]
Andy McCabe
The events began to unfold on February 12th when Zeldin said the agency would try to claw back the 20 billion and terminate its contract with Citibank for dispersing of the funds. Zeldin claimed the Biden administration had awarded the money in a, quote, rush job with reduced oversight, although he did not provide any specific evidence of abuses. The EPA chief cited a secretly recorded video from none other than Project Veritas, a right wing group known for its undercover sting operations, in which an EPA official said the Biden administration was, quote, trying to get the money out as fast as possible before they come in and stop it all. It truly feels like we're on the Titanic and we're throwing, like, gold bars off the edge. Close quote.
- [10:26]
Allison Gill
No, no. Not rushing money out the door before another administration takes over.
- [10:30]
Andy McCabe
Yeah, that's never happened in government before. Right. What is, you know, the end of the fiscal year, you're like, trying to hire all these people and buy stuff before you have to give the money back. That's the way government runs. But anyway.
- [10:41]
Allison Gill
Yep, yep. Now, about a week later, on February 18, the head of the Crim Criminal Division in the U.S. attorney's office in D.C. resigned. We talked about this last week, and that's after declining to order Citibank to freeze the funds. Denise Chung wrote in her resignation letter that the criminal investigation sought by Beauvais and Martin was unfounded. And she added that Martin overruled her judgment that there was insufficient evidence of a crime to order a bank freeze. Chung wrote that Beauvais office and Martin pressed her to act On President's Day, February 17, a federal banking holiday.
- [11:14]
Andy McCabe
A government effort to essentially seize billions of dollars in grants awarded by the government by preventing their release is, quote, extraordinary and probably unprecedented. Whether done voluntarily by the bank at the government request or ordered through a court approved seizure warrant, said Casella, a freeze on all the green grant funds would eclipse by far the US Government's largest confirmed financial seizure when it froze stolen Bitcoin worth more than $4 billion in 2022. While it's not unusual for the FBI or EPA's internal watchdog agency to investigate the spending of taxpayer dollars, ordering a bank freeze to accounts without adequate evidence or legal basis would be a misuse of the Justice Department's powers of criminal investigation. Casella said.
- [12:02]
Allison Gill
Yes, federal asset seizure and forfeiture actions with banks typically unfold in several stages. And you know this, Andy. US Prosecutors can covertly investigate a matter requesting the information from a bank, usually with a subpoena from a grand jury. To freeze or seize a bank account, however, they need a warrant issued by a judge under limited emergency circumstances. They can ask a bank to freeze an account temporarily while a seizure warrant is sought under seal, but they still need probable cause. Now, finally, the government can go forward with publicly filed charges or a criminal or civil forfeiture action. Any warrant or court ordered freeze requires probable cause and notice to the account owner in 60 days. That's again from Casella.
- [12:45]
Andy McCabe
Yeah, I mean, this is like the most basic application of Fourth Amendment law. If you're going to take something, you can't do it without a showing of probable cause. That's what the Constitution says. So the fact that they were trying to do that here when the initial prosecutor and now apparently several others decided there's no probable cause. And of course you had a judge weigh in and say there's no probable cause. It just, it's starting to look pretty ugly. In any case. In her letter, Chung said that she and the Washington field office agreed that it could write to the bank recommending a 30 day administrative freeze on the assets, but not compel it as part of a criminal investigation. Chung said she wrote to the FBI that her office believed there may be, quote, potential violations of federal wire fraud and conspiracy statutes meriting additional investigation, but that the probable cause standard for ordering a freeze had not been met. Meanwhile, the former EPA official in the Project Veritas video, an individual named Brent Efron, was contacted last week by the EPA's Inspector General's office and on Monday by an FBI agent from Washington at the request of Miami federal prosecutor Joshua Pastor, deputy chief of an asset forfeiture unit with the Southern District of Florida, according to a person familiar with the matter. The Miami office is at least the third, U.S. attorney's office asked to take part in the investigation. It was not clear if Pastor would remain on the case.
- [14:19]
Allison Gill
The person said, hmm, okay, so it sounds like maybe some of these assets are frozen because Denise Chung asked for a 30 day freeze, but not as part of a criminal investigation. So we aren't sure. I don't know. And we don't know. And this story doesn't say whether these assets have been frozen properly signed off by a judge with a probable cause being met, or whether this is just a, a freeze that's been asked, but not as part of a criminal investigation. And we'll keep our eye on this for you.
- [14:55]
Andy McCabe
Yeah. Freezed, not seized. There's no indication here that anything's actually been taken or seized by the government, but there may, you know, with all this interest and these requests coming from 42 prosecutors and one actual U.S. attorney or acting U.S. attorney, whatever he is, it is possible that Citibank just decided, you know what, let's just, let's just not, let's hold on to this stuff for a while.
- [15:20]
Allison Gill
Yep. Yep. And also from Politico, the Justice Department has demoted some of the most senior federal prosecutors. This is coming out on Friday as we record this, some of these prosecutors who brought criminal charges against top allies of Trump and handled some of the most significant cases stemming from the capitol riot on January 6th. The demoted prosecutors include a group that sent to prison leaders of the far right, Proud Boys and Oath Keepers for spearheading the January 6th attack. Those demoted include John Crabb and Elizabeth Aloy, who prosecuted contempt of Congress cases that sent Steve Bannon and Pete Navarro to jail for four months apiece. They include Jason McCulloch, who helped lead the team that sent top Proud Boys leaders Enrique Tarrio, Joe Biggs, and Ethan Nordean to prison for their role in orchestrating the breach of the Capitol. And it includes Catherine Rosi, who was lead prosecutor in the January six cases of the Oath Keepers founder Stuart Rhodes and more than a dozen of his allies. And they were, you know, because of their involvement of the, in the attack on the Capitol. So all of these people are being demoted now at doj.
- [16:20]
Andy McCabe
Yeah. Greg Rosen, who headed the capital siege section of the U.S. attorney's Office for the District of Columbia, was also demoted. One prosecutor who worked for Rosen until recently, Brendan Ballou, praised Rosen and decried the wave of reassignments. Another prosecutor who played a leading role in the January 6th prosecutions, Michael Romano, was also targeted for demotion despite the fact that he technically works for the Justice Department's Public Integrity section, not directly within the US Attorney's purview.
- [16:51]
Allison Gill
So all of those people being demoted, it reminds me of all of the folks who were demoted that that Comey happened to share his contemporaneous loyalty notes with, you know, over discussions with Donald Trump. All the people he shared those with got demoted or sent to HR or, you know, kind of set aside.
- [17:14]
Andy McCabe
So, yeah, there was a lot of that kind of surreptitious career ending decisions the first time. And I have to say those were executed by Christopher Wray or a lot of people. Anyone basically who is associated with the Crossfire Hurricane case in any significant way left or was reassigned or basically could never move anywhere. There's no realistic chances of promotion and things like that. So what you're seeing now is a much more overt out in the open, blatantly retaliatory actions being taken against anyone that has any connection to these prosecutions that are suddenly disfavored because they targeted people who are friends or political allies of the President. Yeah, it's third world in practice.
- [18:10]
Allison Gill
And that was FBI. This is doj. But we also know that there were several demotions and firings of lead people at the FBI as well. And that was what Driscoll St. Drizz was pushing back against as he sent out an email naming all of the, I think, eight top FBI officials who were removed from their jobs. And, you know, he put out this little memo saying how many years they had served in their positions and. And all of that. So, yeah, and we're going to talk more about the FBI and its new leadership, but we do have to take a quick break, so stick around. We'll be right back. Hey, everybody. Welcome back. All right, as promised last week, let's talk Patel, who apparently is going to run the FBI from Las Vegas, where he lives with a. Some guy that there's a huge conflict of interest of, you know, him living with. And appointed a podcaster, Dan Bongino, as the deputy director. No shade to podcasters who were once deputy directors of the FBI.
- [19:15]
Andy McCabe
It should go the other way, though. You should do the podcasting after the deputy director gig is done. I mean, good Lord, they should have called me. I could have told them what direction that floor lows, but it's clearly not this one. Yeah.
- [19:29]
Allison Gill
Anyway, the Wall Street Journal has some great reporting on Patel's first week on the job. They say FBI officials from regional field offices gathered on a video call this week to hear their new from their new director, Kash Patel, who Rattled off so many changes that employees couldn't tell if he was serious about all of them. He was planning to reorganize the Federal Bureau of Investigation with a regional command structure. He wants to raise fitness requirements for special agents and arrange a partnership between the FBI and the UFC Cage Fighting League run by a close friend of President Trump's. That's according to people familiar with the meeting. He said he doesn't like meetings and that the weekly video conference might turn into a monthly one, and at one point stepped out to take another phone call. That's according to the people familiar with the. With the video conference meeting.
- [20:19]
Andy McCabe
Oh, my God, I don't even know what to say. He's got the commanders of the 56 field offices on a civics, and he's like, hey, DraftKings just texted me. I gotta go make a phone call.
- [20:34]
Allison Gill
Hey, this is the UFC guy. I gotta see if I can set up some training for field officers with the Ultimate Fighting Championship.
- [20:43]
Andy McCabe
Yeah, it's the coat room at the Poodle Lounge or whatever. Oh, yeah, God, whatever that place is, yeah. So, Patel, a prosecutor turned political operative, has promised radical change at the agency, including plans to shift part of the focus from national security work and foreign threats toward fighting violent crime across the US and other Trump priorities. Because everybody knows that the bureau hasn't been doing anything about violent crime for the last. Oh, wait a second. No, they have. Okay, sorry. His first week at the Bureau has laid bare the extent to which his tenure could upend the tradition bound agency. Agency. And transform its culture. According to interviews with a dozen current and former FBI officials. Soon after arriving, Patel cleared out all civil service staff in the leadership suites and replaced them with political associates. He ordered 1500 employees relocated out of Washington without money in place to pay for the move. And he broke a promise that he had made to agents to appoint a deputy from within their ranks.
- [21:50]
Allison Gill
He also got a second job running another law enforcement agency, which is, quote, an unusual arrangement given that being the FBI director is seen as one of the toughest jobs in government. This also reminds me of Doug Collins trying to run the va, one of our largest federal agencies, while also being triple hatted at other agencies. Now, Patel's partisan background as a surrogate for Trump during the 2024 election campaign and open criticism of the agency set him apart from previous FBI directors.
- [22:23]
Andy McCabe
There's other things that set him apart.
- [22:25]
Allison Gill
That's a funny statement from complete lack.
- [22:28]
Andy McCabe
Of any leadership experience anywhere at any level ever. Undistinguished legal career, no captivity, Having to.
- [22:36]
Allison Gill
Plead the fifth in federal investigations.
- [22:38]
Andy McCabe
Yeah. Yeah. Okay. Anyway. Good.
- [22:41]
Allison Gill
Yeah. Patel and the president share the view that the FBI must be purged of what they perceive as bias against Trump and other conservatives. His ascendance to the job after officials from Trump's first administration found him unqualified and untrustworthy is a remarkable one.
- [22:56]
Andy McCabe
On Sunday, Trump named conservative commentator and fellow FBI critic Dan Bongino, who earlier this month urged Trump to ignore a judicial order he didn't like. He was named as Patel's deputy. Patel had told an FBI agents group that he would stick with the tradition and pick a career agent for the number two role. In an email to staff, Patel said that he was, quote, confident Dan will bring his vigor and enthusiasm to the deputy director role, driving the operations of this organization in the right direction. Note to the audience that job takes something other than simple vigor and enthusiasm. I'd say that as someone who did it for a while. Okay. Patel also appears to be bringing many stylistic changes to the job.
- [23:46]
Allison Gill
That's a nice way of saying it.
- [23:48]
Andy McCabe
New style. He told officials he planned to spend a lot of time in Las Vegas, where he was living last year. All right. He ordered new decor for his Washington office and asked for his personal trainer to be cleared to enter the building for his workouts.
- [24:04]
Allison Gill
Past directors rarely attended Washington social events so they wouldn't run into chief executives that could make an uncomfortable request. Right. And they cultivated an office dress code of suits and ties. Patel has been spotted around D.C. including at a party at the British ambassador's residence on Wednesday. And he also showed up to the regional meeting without a jacket. Of course. I think they gave Zelensky in the Oval Office a tongue lashing for not wearing a suit, but whatever. Quote, I'm not planning on wearing a suit. I don't expect to wear one. That's what Patel said. So super professional fellow.
- [24:40]
Andy McCabe
Yeah. Yeah. I mean, I don't know where to begin. To begin with this. It's insane. Patel is. Well, we all know what Patel is. He's a just a lackey to Donald Trump. That is his one qualification for this job. It was good enough to get him the job. It is his unflagging loyalty to Donald Trump. There is no chance that Cash Patel will ever resist any directive or order or suggestion or anything that Donald Trump gives him about FBI work, FBI investigations, FBI legal authority, that sort of thing. There's not a chance he will not push back if the president asks him to do something illegal, unethical, or immoral. And so that's why he has the job. Bongino. But having no other qualifications, you would think that the guy would maybe pick someone, maybe try to find someone who's like minded but who has an understanding of the organization, knows how it works, know what levers to pull and push to get things done. Someone who could kind of translate FBI speak for him because it is a foreign language and the ability to understand what's happening in the rank and file, absolutely essential to any director. And that's typically what the deputy director does, a big part of the DD's job. So instead he picks a guy who has less knowledge, less experience than he does. So, you know, and Bongino is a guy who, I mean, let's face it, has been peddling conspiracy theories, lies about the 2020 election, all kinds of nonsense. He's been banned from platforms like YouTube for spreading misinformation. So he's the guy that's now going to be charged with overseeing all FBI intelligence collection and investigative operations. Everything. The work of every one of the 12,000 agents and you know, 26,000 other employees is all ultimately under him. And he begins that task basically knowing nothing. He was a cop in New York City for a couple of years and then he was a Secret Service agent. He spent most of his time in the service, as I understand, working in the training division and also did some time on Obama's presidential protection detail, which is good and valuable work, but it doesn't give you any insight into how the labyrinthine machinations of the FBI works. So we'll see.
- [27:16]
Allison Gill
I think my career as a standup comic probably makes me more qualified. Yeah, at least to report on this joke of an administration. But that's not it. That's going on at the Justice Department this week.
- [27:30]
Andy McCabe
Oh no. So from Talking Points Memo, a new top Justice Department appointee brings a bizarre past to the job. He was a state judge in Oregon, but was in 2018 suspended by a state ethics board over misconduct allegations. Vance Day, the ex Marion County Oregon Superior Court judge started work last week as a senior advisor in the office of the Deputy Attorney General. During his time as a judge, Day was accused of a cascading series of ethical lapses culminating in a decision by Oregon's Commission on Judicial Fitness and Disability to submit a June 2015 complaint that ultimately resulted in the state's high court suspending Day from the bench for three years. One of the allegations, which involved Day purportedly allowing a convicted felon to handle a firearm, led to a multi year criminal investigation. Prosecutors dropped the case on the eve of trial after a key witness declined to testify.
- [28:33]
Allison Gill
Yes. They go on to say that the DOJ would hire a senior official with a documented record of ethical lapses stemming from alleged abuses of power. Would come as a surprise in any other era. Yeah. Now it's. I think it's a requirement on your resume.
- [28:48]
Andy McCabe
Yeah.
- [28:48]
Allison Gill
It's an example of handing over an enormous amount of power to someone with a questionable record. In this case, a person who an organ court found abused an earlier office. Just some of his questionable behavior includes Day allegedly using his status as a judge to try to intimidate the referee at his son's soccer game. The court found that Day then tried to mislead an inquiry into the incident by suggesting that he had been assaulted. In another case, Day allegedly concocted a scheme to avoid having to certify gay marriages. Staffers at the court were instructed to tell gay couples that Day was not available on the day that they requested, allowing him to avoid having to perform marriages.
- [29:28]
Andy McCabe
In another incident, according to court records, Day had developed a friendship with a former Navy SEAL who had pleaded guilty to a felony DUI charge in his court. The court found that Day had allowed the veteran to handle guns with members of his family in two instances, violating the terms of the guilty plea. After receiving the three year suspension, Day branched out into other areas of political life. He had a stint of several years as a leader in the Promise Keepers, an evangelical men's organization that opposes marriage equality and advocates for male dominance of the household. Among other things, he appeared on a talk show hosted by Mike Huckabee. Separately, Day has compared his travails to those of Donald Trump, calling the experience like a Russian hoax against me and blaming it on, quote, government brown shirts who wanted to compel him to conduct same sex marriages.
- [30:23]
Allison Gill
Yes, because that's what Nazi brown shirts do. They compel you to perform gay marriages.
- [30:29]
Andy McCabe
Yeah, well, known to be, like, very proactive supporters of the gay community, those brown shirts, right? No, not. Not exactly.
- [30:38]
Allison Gill
So anyway, that guy's got a nice job at DOJ in, what was it, the office of the Deputy Attorney General.
- [30:43]
Andy McCabe
Yeah, those are very. This is staffer job. So you're not actually respond responsible for like, you know, overseeing or conducting big important investigations, but they end up being very influential because those staffers job. Those staffers typically launch into leadership positions later, and they have a lot of impact on, like, what the Deputy Attorney General, the DAG, does and how he decides different issues and things like that. They go to all the briefings and stuff. And yeah, they have access to a lot of information.
- [31:16]
Allison Gill
Yeah, it's kind of frightening. Somebody who was removed as a federal judge for ethical lapses is state court judge. State court judge. Excuse me. For ethical lapses. So, yeah, wow. All right. But we're not done talking about stuff that's happening at the Department of Justice. They seem to be. You remember how at first the Department of Justice was like, all right, we'll get, we're gonna pardon all these January 6th guys, but if you had, if you had other, if you're in jail for other crime, we weren't going to pardon those. Well, now they're starting to pardon those and we're going to talk about that. But we have to take another quick break, so stick around. We'll be right back. Hey, everybody, welcome back. So it appears, Andy, that the Department of Justice is reversing course on allowing Trump's pardons of January 6th rioters to extend to their other crimes. Politico says when FBI agents searched January 6th defendant Jeremy Brown's home in 2021, they found a trove of illegal weapons. Grenades, a modified AR15 style rifle, a sawed off shotgun, and a classified report that he kept after he left the Army. Now, Brown, who's a retired Green Beret from Tampa, is serving a seven year sentence for those crimes. But on Tuesday, Trump's Justice Department said he should be immediately released based on President Donald Trump's mass pardons for people convicted of storming the Capitol on January 6th.
- [32:47]
Andy McCabe
Also Tuesday, the Justice Department similarly said Trump's clemency covered a firearms conviction against a former Jan.6 defendant named Dan Wilson, who was sentenced to five years in prison for illegal guns discovered in his Kentucky home. The developments in the two cases followed the Justice Department's efforts last week to broadly deploy Trump's pardons on behalf of two other January 6th defendants with several separate gun related charges.
- [33:15]
Allison Gill
Yep. And the only 1-6- defendant who appears to be facing continued prosecution is Edward Kelly. He was convicted by a Tennessee jury last year for conspiring to murder the FBI agents and other law enforcement who investigated him. Kelly has argued that Trump's pardon should cover those offenses, too. But so far, the Justice Department has said Trump's pardon doesn't stretch that far. And I'm really interested for any reporters to ask why one stretches that far, but another doesn't stretch that far, particularly considering, considering none of these crimes for any of these guys have anything to do with what they did on January 6th. So they have some sort of line in their head. And it seems pretty arbitrary to me and not, not based or grounded in any kind of law.
- [34:02]
Andy McCabe
How about a little pushback from these judges as well? Right? Like, it's basically an, it's an immunity issue, just like all the many immunity issues we covered in the Jack podcast. Like, there's, there seems like there would be good arguments to make here that now, of course, who's going to make them? But that's probably the problem. But it's not covered, you know, like, and a judge could raise that and decline, I would think, because it doesn't fit within the presidential order.
- [34:33]
Allison Gill
But yeah, and we'll see what happens. Again, these, this would end up being a situation where the defendant and the Department of Justice both agree and they may need to appoint another amicus curi to be the adversary.
- [34:46]
Andy McCabe
And these people, these are already convicted people. So the Justice Department doesn't have the same kind of authority in these situations as it does in, let's say, the Eric Adams case. Dismissing a charge is one thing, but going in and trying to erase a conviction. Judges have a totally different, a different amount of leverage here. And how about a little pushback? What do you think?
- [35:11]
Allison Gill
Yeah, that would be nice to see. But oddly enough, even though we have changed the podcast name from Jack to Unjustified, we do actually have some Jack Smith news.
- [35:22]
Andy McCabe
We do, we do you never. I mean, you know, Jack is, he's still our guy, so we still gonna cover him. The chief judge in District Court in D.C. judge James Boasberg, has now ordered the Justice Department to respond by March 4 to a new York Times request that the court unseal judicial records From Jack Smith's 2020 election interference case against Trump and from the classified documents case. Now, we're going to keep you posted on all that.
- [35:53]
Allison Gill
Yes, we will. And the New York Times reported this week that President Trump said on Tuesday he's going to strip security clearances from lawyers at a prominent Washington law firm that, that are aiding former special counsel Jack Smith, who we know investigated Trump, and they want to end any federal government work that the firm may have. The proposal signed by Trump on Tuesday targeted the international white shoe law firm Covington and Burling, which employs over 1200 lawyers, including some high profile Democratic lawyers who worked on the Obama and Biden administrations.
- [36:24]
Andy McCabe
Signing executive orders before reporters in the Oval Office, Mr. Trump described the plan to reporters and offered to send the pen he used to Jack Smith, who led the investigations into Mr. Trump as special counsel. The memo is a breathtaking escalation of Mr. Trump's effort to employ the vast powers of the presidency against Mr. Smith and the team of prosecutors and federal law enforcement officials who worked for him, extending that campaign to those who have provided Mr. Smith pro bono legal representation.
- [36:56]
Allison Gill
Yeah. Because according to a disclosure filed with the Justice Department shortly before resigning as special counsel ahead of Trump's return to office, Smith, a former war crimes prosecutor, as we know from the Hague, said he had received $140,000 worth of free legal advice from Covington to help him prepare for investigations and legal actions by Mr. Trump's allies. And let me just say $140,000 might sound like a lot. It's not. When you're talking about one of these giant, high profile cases, and when you're talking about lawyers at Covington Burling, $140,000 is a drop in the bucket.
- [37:28]
Andy McCabe
Nothing that you could burn that up in a week. I mean, it's like the rates at these firms are really outrageous. But yeah, I agree. That's not nearly as much as it sounds.
- [37:40]
Allison Gill
Yeah. And the directive ordered the administration to revoke any security clearance held by Peter Koski, the Covington lawyer representing Smith and any other members of the firm who may have participated in such. In his first month in office, Trump has moved to bar a number of private citizens he dislikes from holding security clearances. And in some cases, those people no longer had clearances or didn't need them anymore anyway. But in Mr. Koski's case, the move could have more serious consequences. Revoking his clearance could limit his access to sensitive government records. Given that both of Mr. Smith's criminal investigations against Trump involved classified documents, doing so could sharply limit what representation Mr. Koski might be able to offer Jack Smith.
- [38:20]
Andy McCabe
Mr. Trump's memorandum also instructed agency chiefs to cancel any Covington legal work on behalf of the government, though it is unclear whether the firm represents the United States on any matters. The memo also called for a review of any government contracts with Covington. Though it is unclear whether there are any government contracts with Covington, a spokesman for the firm emphasized that it would defend Mr. Smith and his interests. For more than 100 years, Covington has represented clients facing government investigations consistent with the best traditions of the legal profession. The statement said. We recently agreed to represent Jack Smith when it became apparent that he would become a subject of a government investigation. Covington serves as defense counsel to Jack Smith in his personal, individual capacity.
- [39:10]
Allison Gill
All right, well, it's become apparent that he is going to become a subject of the government of a government investigation. That's pretty significant. Statement. More recently, Ed Martin, our friend over there at the D.C. u.S. Attorney's office, the interim D.C. u.S. Attorney, he has issued an ominous warning on social media shortly after Jack Smith's firing. He said, save your receipts. Smith and Covington will be in touch soon. Hashtag, no one is above the law. Okay, you sure? That's what Mr. Martin, a right wing political activist who supported Trump's mass clemency for Capitol Rioters, said on the platform. So that's where we are with what's going on in a couple of different stories regarding the, you know, Trump's Department of Justice. And it's, you know, for, for them to just, I mean, it's clear obvious what's going on here, right? That no one is above the law. We're investigating the investigators. It just feels like all of that idiotic dog and pony show investigations that went on in Congress when Jim Jordan and Jim Comer had the gavels. They're just taking it out of Congress and moving it up to the Department of Justice and using the Department of Justice as their own personal investigative unit to, to basically create propaganda.
- [40:35]
Andy McCabe
Yeah, for sure, for sure. I mean, they're essentially doing what they complained about for the last four years. They are weaponizing DOJ and the FBI against political enemies, people who they find inconvenient, people who Trump wants to inflict some sort of pain or suffering or retribution upon. And they're using the government, the government that you pay for, you and I and all of us pay for with our tax dollars, the parts of the government that we all expect and depend upon to be independent, to just follow the law and the facts and not be influenced by politics. All that is getting torn asunder. And for this Ed Martin, I gotta say, Ed Martin is going to keep this podcast alive single handedly, because this guy is such a, he's such a buffoon. I mean, he's done so many things that are inconsistent with the way U.S. attorneys. And I mean any U.S. attorney from any political party serving in any administration, this guy's on social media trolling Jack Smith with his own created hashtags. I mean, he is just, he's going into court by himself with search warrants. Like, the U.S. attorney does not do that. You know why? Because in a 1 in 10 million chance that warrant gets declined, which happened here, you look like an idiot to the courts, right? You lose credibility to your office, to the people who work for you, who you're supposed to be training and mentoring and turning into senior prosecutors, and to the judges, and when the judges think that you're a clown with no credibility. That washes over onto all of your lawyers from your office, and next thing you know, all their work is harder to do in court. Judges are less likely to believe them and take them seriously and consider their arguments if they think that the entirety of the office, from that head guy on down, is just a circus. And that's who this guy is.
- [42:42]
Allison Gill
Perfect example, you know, career prosecutors in the Department of Justice arguing in court this past week, when asked who's in charge of the Department of Government efficiency, who's the administrator? What is the governance structure? They. I don't know. I don't know the answer to that. I really don't know the answer to that. And, you know, again, it takes me back, and I know I've brought this example up. It takes me back to that census case where it was finalized, and then Trump said, it's not. We're still fighting. And the DOJ goes to the judge, and they're like, we're super sorry. Please don't be mad at us. We thought this had been handled as well. Oh, my gosh. Or when. Who is it? Mike Sherwin. That guy? Yeah. Went on 60 Minutes and told everybody that the Oath Keepers were being invested for seditious conspiracy. And Judge Amit Mehta was like, everybody in my courtroom now. And the doj. Hi. Yeah. Oh, yeah. He's like, knock it off. Stop the shenanigans. You're going to threaten this entire prosecution and this entire case. And, of course, before he could be sanctioned by Merrick Garland, he resigned. Mike Sherwin did. For that stunt. But it's that kind of loss of trust within the courts that really makes it impossible to do your job as a line prosecutor.
- [44:09]
Andy McCabe
Yeah, totally. Making it. Making it harder every day. But again, these are things that they don't care about. They're really just focused on revenge and vanquishing the enemies and that kind of nonsense. Anyway.
- [44:22]
Allison Gill
Yep. It's like, we remember when he was like, hey, Department of Justice, Donald Trump.
- [44:27]
Andy McCabe
Hey.
- [44:27]
Allison Gill
Just. Just, hey, Rosen and Donahue, just say there's, you know, you're investigating election fraud, and we'll do the rest.
- [44:36]
Andy McCabe
Leave the rest of Congress. Yeah, yeah.
- [44:38]
Allison Gill
The Republicans in Congress, that's the kind of thing. And that's why I feel like it's turning into, you know, Jim Comer and Jim Jordan, but at a department of. Just us, an FBI level, which is extremely sad and embarrassing and puts us all at risk, in my opinion.
- [44:58]
Andy McCabe
Yep, agree, Agree.
- [44:59]
Allison Gill
All right. We've got a Couple more stories and some listener questions. We're going to take one last quick break, so stick around. We'll be right back.
- [45:15]
Andy McCabe
Welcome back. Okay, before we get to listener questions, we have an update in the Eric Adams case. His attorneys asked a federal judge on Wednesday for an outright dismissal with prejudice of his criminal corruption case, citing alleged misconduct by prosecutors. Now, Adam's lawyers cited a leaked letter from the former acting Manhattan U.S. attorney Danielle Sassoon to Attorney General Pam Bondi in mid February. Now, we covered that letter super closely. Yes. So I'm sure our listeners know what they're referring referring to there. So the letter contained a statement about Adam's alleged guilt, the intention to file new charges against him, and the suggestion that the U.S. department of justice had engaged in a quid pro quo with the mayor to dismiss the case.
- [46:04]
Allison Gill
Yep. Yeah. So they're citing prosecutorial misconduct by Danielle Sassoon for leaking the letter. Now, Sassoon was one of at least seven federal prosecutors who resigned rather than follow the DOJ's order to request a dismissal of the case without prejudice, which would allow the DOJ to refile charges if it saw fit, kind of holding that over Eric Adams's head as a threat to cooperate with the Trump administration on what could be considered illegal immigration policy being executed in New York, quote, to be sure, the February 12th letter and the decision to leak it were last acts of desperation in defense of a meritless case that never should have been pursued in the first place. That's what Adam's lawyers, his lawyers Alex Spiro and William Burke said in their filing in Manhattan federal court. I feel like William Burke also represented, like who was the Reince Priebus and Don McGann. And we were talking about how they all had to be singing off the same sheet of music if they were being represented by the same lawyer.
- [47:08]
Andy McCabe
Yeah, he did. And he also was the he was deeply involved in the documents leading up to the Kavanaugh confirmation hearing. He's kind of the go to private lawyer in Republican circles.
- [47:26]
Allison Gill
Yeah. Now this goes on to say that if Judge Dale Ho dismisses Adam's indictment with prejudice, as the mayor wants, it would bar the DOJ from refiling criminal charges related to the same allegations in the future. And as we know, last week he appointed an outside lawyer, Paul Clement, I believe, to research the standards to determine whether the case should be dismissed at all and if so, whether the case should be dismissed with or without prejudice. Now, his brief, andy, is due March 7 this Friday. And you can bet we'll go over it in detail if we get it in time before we record next week's episode. So we're going to be looking for that. Keep in mind, John Gleason in the Flynn case had an 82 page amicus brief that he wrote and it was not nice to Flynn and Trump's Department of Justice. And so we'll see. But he, Paul Clement, a prominent conservative lawyer who has argued before the Supreme Court and is well liked by the conservative wing. So we'll see what ends up happening, what this looks like now that now that he's saying Adams is asking for a dismissal with prejudice, that could be an off ramp for this Judge Dale Ho to be like, all right, well, we can dismiss this without or with prejudice, you know, because that allays the concern that he would be beholden to the Trump administration for following orders under the threat of potential future charges. But there might also still be an argument to deny the Rule 48, a motion to dismiss altogether because it's, it's just completely improper and based on nothing. And that there, you know, he may find that there's no prosecutorial misconduct here. So we'll see how, how this all shakes out. But Judge Dale Ho has admitted, hey, I don't have a lot of discretion here for Rule 48Amotions when both the department and the, the person being charged are on the same page. And especially now that he's saying he's fine with having it dismissed with prejudice. Because, Andy, you and I said this judge might dismiss these charges, but he might do, would do it with prejudice. And now that that's an option, we could see that happen.
- [49:31]
Andy McCabe
It'll be interesting, too, to see how DOJ responds to the defense brief from Wednesday. Like, they might come in and just say, you know what, we're good with it. Dismiss it with prejudice. We're not opposing the defendant's motion because we also believe that Sassoon committed prosecutorial misconduct. And yeah, you know, they convinced us, so go ahead and do it. I think that would put more momentum behind that potential resolution.
- [49:59]
Allison Gill
Agreed.
- [50:00]
Andy McCabe
It's, it would give them the opportunity to kind of like, cut the ties with this thing and get away from it because it's such a ballast around their neck, but we'll see.
- [50:10]
Allison Gill
Well, I hope they don't do it before we get to see Paul Clements amicus brief, because I really want to see what he has to say about it.
- [50:18]
Andy McCabe
Yeah, I think Judge Ho is not going to make any kind of final decision until he gets that. I mean, he asked the guy to do it he's not going to, like, cut the legs out from unream before he does it.
- [50:27]
Allison Gill
Yeah, good point. All right, it is time for listener questions. If you have a question you want to ask us, you can click on the link in the show notes and submit what do we have for listener questions this week?
- [50:38]
Andy McCabe
All right, so I picked two this week. I think they're both kind of consistent with some of the themes that we've talked about today in the show. So the first one is from Kyle, who is in la. Kyle says, I enjoy the podcast and look forward to each new episode. The media seems to have taken the Trump bait and allowed his law breaking to be cast as some sort of showdown between the executive branch and Congress. What seems to be missing in the discussion is that these laws were signed by previous presidents. Doesn't Trump's actions amount to a type of retroactive line item veto and not a separation of powers argument? It's an interesting way to phrase it, Kyle. Hadn't really thought of it that way. Line item veto is obviously not a thing. Actually, no, pres. Although many presidents have wanted it, none have ever been given the authority by Congress. If they had it, it would enable them to basically cut out the parts of a past law that they don't like and not enforce those pieces. Since what we're talking about here. Well, since that doesn't. They don't actually have that power. I don't. I don't think that's really what's happening here. There's some similarities, but the legal issue is about the Trump administrations and this president's failure to comply with the law in the case of freezing all these assets. That's the compoundment law, right?
- [51:59]
Allison Gill
The law passed by the impoundment law.
- [52:02]
Andy McCabe
Impoundment. I'm sorry, I've got my compounds and impounds confused. The impoundment law basically says, no, no president can refuse to disperse money allocated by Congress for a particular purpose. You can't exercise that kind of decision making or it's stepping on the power of Congress. So it's really a power, congressional powers, constitutional issue. And also I would argue that by refusing to spend this duly allocated funds, he's also failing to live up to his constitutional obligation of taking care that the laws are faithfully executed. That's the take care clause from Article 2. So, yeah, I think there are plenty of good constitutional arguments against what he's doing right now. Whether or not the Supreme Court will take the precedent, you know, follow precedent, very clear precedent here, and rule in that direction or throw all of that out the window for the opportunity to embrace the unitary executive theory, which basically says a president can do whatever the hell they want whenever they want it. We'll have to see.
- [53:16]
Allison Gill
Yeah. And I think, Kyle, that the reason that the idea that the laws were signed by previous presidents is missing in the discussion is because when you sue to stop these things from happening, there is robust case law that you can cite for separation of powers. And not necessarily. I. I can't think of a case, although I haven't. I could. I. I'll admit I haven't gone to look for one where they don't argue separation of powers, but rather argue that previous presidents had signed these laws. And so, you know, when you're putting together your lawsuit and your legal arguments, it's always best to use the argument that has been made and won a zillion times before. That's right. Rather than a new legal novel or a novel legal argument that you don't have any case law to cite. And so whether there is or isn't any case law, you know about past presidents, sign this. So the future president has to go by it. I. There might be, but I imagine it's a million times less than the case law that you could cite for a separation of powers argument.
- [54:25]
Andy McCabe
Yeah.
- [54:26]
Allison Gill
Just my two cents.
- [54:27]
Andy McCabe
Yep.
- [54:28]
Allison Gill
All right, next up we have what appreciative listener since day one.
- [54:31]
Andy McCabe
Yes, they admit that it's a long one, so bear with me here. It's worth it. This person really kind of makes some interesting sites at the end. Okay, so appreciative listeners since day one says to the esteemed and illustrious hosts whose caring voices and knowledgeable insights have weekly carried more of the public than you will ever know. Love that opening. Thank you. Appreciative. Yes, apologies this is so long. And I will cut to the chase here. What makes Kash Patel so dangerous is his pathological ability to lie. Knowing full well that he has such rapport with his intended audience. I have no doubt in my mind that he intends to abuse the power of the FBI. Assuming that he has confirmed his director, which of course he has been, can you please describe what it would take for FBI abuses on the scale of J. Edgar Hoover to be repeated? I don't know much about the personnel, the FBI at the time of his long tenure, or even the inner workings then or now, but it is my guess that there would have to be enough field agent and mid level cooperation for intentional abuses to persist. Okay, so I'm going to get to that in Just a second. But they cite Patel's frequent claim that Nancy Pelosi was offered and rejected at least 10,000 National Guard prior to January 6th. And they cite June 9th, 2022, on the Hannity show as one of the many times he made this claim, which lies in contrast to his testimony under oath to the Senate intelligence committee on December 9, 2021, when he stated that he was unaware of Nancy Pelosi being offered 10,000 National Guard prior to January 6th. And they include the site to pages 43 to 44. So I really share your concerns. One of my, and I should say one of my biggest red flags about Kash Patel is what I believe is his willingness to lie and mislead. And this is just my opinion, but I base it on. There are many examples from his very recent testimony in his confirmation hearing in which he seems to have deliberately misled the committee in his responses. Things like, I don't know this podcaster, even though I've been on his podcast.
- [56:48]
Allison Gill
Eight times, or I had no involvement in the mass purges at the FBI.
- [56:54]
Andy McCabe
Yep. And now apparently Senator Durbin has evidence that he did. So if you're going to so frequently mislead and disassemble in the confirmation hearing under oath on television in front of the entire world that I think bears, that's a really bad sign of how he will conduct himself in this or any office. Now, what would have to happen for, you know, in the Bureau for people to kind of facilitate whatever it is he decides to do there? Well, I don't, you know, most FBI people, The vast, vast majority, 95%, 99%, would not go along with any sort of illegal or unethical directive. But it doesn't take 95% to make those things happen. You only have to find a couple of people who are either so focused on getting the favor of the director and all that that can lead to, or they're so afraid of losing their jobs and their careers and not being able to support families that they're willing to go along. It only takes a couple of people. You know, he doesn't have to get all 12,000 agents to do his bidding. He only needs to surround himself with a pretty small group of people who will, who will go in that direction. And once you have that, some of the things that he tries to do will happen. So I'm not, you know, I am loathe to, and to show any lack of support for the FBI and its people. I love that organization and those people, and they are some of the best on earth. And I think they're about to go through a really hard time, which makes me feel terrible. And they will keep showing up and doing the right thing to the best of their ability every day. But in a group of 12,000 agents or 38,000 employees writ large, I think it's dangerous what he's said he intends to do, and certainly the way he's conducted himself so far, I think is a bad sign.
- [59:09]
Allison Gill
Yeah. And you add to the mix all of these demotions of, of career professionals that are going to be replaced with yes men, you know, and it you compound the matter even further. Yeah, I think so. But what a great question and what great citations, you know, especially some of the different testimony given by Kash Patel from this listener. So thank you so much for this question. It's really great. And thanks to all of you for listening and submitting your questions. You can please click on the link in the show notes there and submit your question to us. We'll do our best to answer it. And we really appreciate you. Thank you so much. And we're going to have a lot to unpack, especially like you said, Andy, with Ed Martin in the coming months and years. So it's, it's frustrating what's happening to these agencies, these institutions, as we know, Timothy Snyder, Chapter 2 of On Tyranny Defend Institutions. That's kind of what we're trying to do here with this podcast, by making sure everybody knows exactly what's going on in Trump's Department of Justice. So just thanks for listening and spreading the word about the show.
- [60:25]
Andy McCabe
Yeah, for real. I totally agree with everything you said. And it can be overwhelming to follow these things right now. And it seems like so many chaotic and kind of destructive things are happening at the same time. But good on you for staying up with it, for thinking about those pieces that may mean the most to you. And we'll do everything we can to provide you this information every week and create a place here and a community where you can find out what's going on and give you a little minute to think about it and maybe a couple of laughs along the way.
- [61:00]
Allison Gill
Yeah. Let us be your filter to the fire hose of news about this organization. Andy, with your expertise and my penchant for what seems like important news to understanding what is important news and your input on that, I think we're well equipped to be able to bring you the stories that we think matter the most with regard to the Department of Justice. Thanks for trusting us with that and trusting us to be your fire hose filter. And we'll keep, we'll keep doing it as long as, as long as these airwaves are available. But we do appreciate you. We're going to see you next week. Thank you so, so much for listening. I've been Alison 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.