Ed Martin, WCADAGPA

Summary

UnJustified Podcast Episode Summary
Title: Ed Martin, WCADAGPA
Host/Author: MSW Media
Release Date: May 18, 2025

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Introduction

In this episode of UnJustified, hosts Alison Gill and Andy McCabe delve into several pressing legal and political issues surrounding the Department of Justice (DoJ) under the Trump administration. The discussion centers on the erosion of civil liberties, the manipulation of legal processes, and the internal dynamics of the DoJ, highlighting key cases and recent developments that underscore the threats to the rule of law.

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1. Abrego Garcia Case and Judge Sinise's Hearing

The episode opens with an analysis of the Abrego Garcia case, focusing on Judge Sinise's recent hearing addressing the dismissal of state secrets and deliberative process privileges in the discovery phase.

• Discovery Controversy: Judge Sinise is scrutinizing whether the DoJ's invocation of state secrets and deliberative process privileges over 1,000 documents related to El Salvador seacoat detainees is justified. The DoJ submitted only 32 documents under seal, which has raised significant concerns about transparency and compliance with court orders.

  Alison Gill (00:16): "The Trump administration lawyers have given Judge Boasberg documents they say show the United States does not have constructive custody over El Salvador seacoat detainees, but the Department of Justice submitted them under seal."

• Government's Defense: DoJ attorney Gwyn argues that complying with all discovery requests would jeopardize state secrets, leading to a tense exchange with Judge Sinise, who demands more substantive justification.

  Andy McCabe (03:55): "Rossman says, my head is spinning based on what I've heard from the government. They've told us nothing, Zero, nothing."

• Legal Implications: The hosts discuss the likelihood of a contempt finding against the DoJ, emphasizing the significant impact on due process for Abrego Garcia.

  Andy McCabe (08:55): "We have due process in the balance. And there's the question of the role of the judiciary."

Notable Quote:

Alison Gill (05:31): "Rossman continues on the State secrets privilege issue, it says. Important to underscore the context here. We're talking about a single person removed to another country."

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2. DOJ Shuttering the Public Corruption Squad

The conversation shifts to the DoJ's decision to close its federal public corruption squad within the FBI's Washington Field Office, a move that dismantles efforts to investigate high-profile corruption cases, including those involving Donald Trump.

• Impact on Investigations: The closure of Criminal Squad 15, known internally as CR15, disrupts ongoing investigations that previously contributed to cases like the Arctic Frost probe, which preceded Jack Smith's inquiry into Trump's actions post-2020 election.

  Andy McCabe (43:22): "FBI special agents assigned to the squad will be reassigned... The move to shutter the unit comes amid a major shift of FBI resources towards immigration enforcement."

• Resource Reallocation: Resources are being diverted to immigration enforcement, which is primarily the responsibility of ICE, further weakening the DoJ's ability to tackle white-collar and public corruption crimes.

  Alison Gill (44:34): "They're gutting the public Public Integrity section... and moving everybody to ice folks."

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3. Supreme Court Ruling on the Alien Enemies Act

A significant part of the episode covers the Supreme Court's preliminary injunction blocking the removal of petitioners in Texas under the Alien Enemies Act (AEA).

• Legal Precedent: The ruling, with a 7-2 decision, prevents the Trump administration from using the AEA to deport individuals affiliated with Trend Aragua, marking a critical check on executive power.

  Alison Gill (30:43): "This ruling means that the Trump administration is barred from using the Alien Enemies act to deport the men in Texas."

• Future Implications: The hosts anticipate further appeals and a possible Supreme Court review of the AEA proclamation, underscoring the ongoing legal battles over executive authority and due process.

  Andy McCabe (30:38): "They're going to have to define what notice looks like... and then that will go back to the Supreme Court."

Notable Quote:

Alison Gill (28:35): "This almost certainly goes straight back to the Supreme Court for a ruling on the AEA Proclamation itself."

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4. Ed Martin Under Investigation

The episode prominently features Ed Martin, the Assistant Deputy Attorney General and Pardon Attorney, who is under investigation by an ethics office overseeing attorney discipline in Washington.

• Investigation Details: Martin's controversial goodbye email revealed he is being investigated for allegedly using his position to intimidate perceived adversaries without proper cause. Democratic lawmakers accuse him of abusing his power and seeking to shame individuals without legal grounds.

  Andy McCabe (37:18): "Ed Martin... is under investigation by an ethics office that handles attorney discipline in Washington."

• Implications for the DoJ: Martin's behavior exemplifies the broader issues within the DoJ, where officials are accused of leveraging legal mechanisms to target political opponents and erode legal norms.

  Alison Gill (51:03): "Ed's job at the DOJ is to violate DOJ policy."

Notable Quote:

Andy McCabe (51:41): "He is the embodiment of unjustified."

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5. FBI’s Response to January 6th Investigations

The hosts discuss the FBI's lawsuit against the government to prevent the release of names involved in the January 6th investigations, highlighting the ongoing conflict between federal agencies and the judiciary.

• Legal Battle: Ed Martin's public statements about naming and shaming federal employees funding the January 6th probes have intensified the lawsuit aiming to protect the identities of involved FBI agents.

  Andy McCabe (54:42): "He is the embodiment of unjustified."

• DOJ’s Stance: Martin's admission of intent to shame unindicted parties undercuts DOJ policies and raises ethical concerns regarding the weaponization of legal authority.

  Andy McCabe (51:45): "It may be a violation of their privacy rights."

Notable Quote:

Alison Gill (52:10): "This guy is a disgrace to the practice of law, to the Department of Justice, to the D.C. U.S. Attorney's office."

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6. Jim Comey's Alleged Threat and Investigation

The podcast covers an incident involving former FBI Director Jim Comey, who is under investigation for an Instagram post that Trump and his allies interpret as an assassination threat.

• Incident Description: Comey's Instagram photo featured the numbers "8647" arranged with seashells, accompanied by the caption "cool shell formation on my beach walk." Trump claims this constitutes a veiled assassination threat.

  Alison Gill (56:00): "Jim Comey is under investigation for posting 8647 on Instagram."

• Hosts' Perspective: Gill and McCabe express skepticism over the severity of the threat, comparing it to less serious incidents handled by law enforcement.

  Andy McCabe (57:56): "If they handle it the way they handle literally hundreds and hundreds of these things, they'll walk away."

Notable Quote:

Alison Gill (58:33): "This whole thing is ridiculous from start to finish."

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7. Listener Questions: Speed Round

In the latter part of the episode, Gill and McCabe address listener-submitted questions, providing insights on topics such as DHS ICE recruitment, the legality of government agents hiding their identities, the suspension of habeas corpus, and the Emoluments Clause in relation to Trump's proposed use of a Qatari 747.

• DHS ICE Recruitment: Skepticism is expressed regarding the feasibility of recruiting 20,000 ICE agents in 60 days, citing past failed recruitment drives.

  Andy McCabe (60:05): "20,000 agents in 60 days. Not a chance."

• Government Agents Hiding Faces: They clarify that while there's no legal requirement for agents to show their faces during arrests, agency policies often mandate visible identification to prevent misunderstandings.

  Alison Gill (62:53): "They work at DHS, FBI... everything has to have police on there."

• Suspension of Habeas Corpus: The hosts explain that only Congress, not the President, has the authority to suspend habeas corpus, and such actions are constitutionally limited to extreme circumstances.

  Andy McCabe (64:20): "Only Congress can suspend the writ of habeas corpus."

• Emoluments Clause and Qatari 747: They discuss Trump's proposal to use a Qatari-owned airplane as Air Force One, highlighting its potential violation of the Emoluments Clause, which prohibits the President from accepting gifts from foreign governments without congressional approval.

  Alison Gill (65:42): "The Emoluments Clause says the president cannot take anything of value from a foreign government."

Notable Quote:

Andy McCabe (66:44): "You cannot accept a gift from a foreign government unless Congress approves."

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Conclusion

The episode concludes with the hosts reflecting on the ongoing challenges within the DOJ and federal agencies, emphasizing the critical need for accountability and the preservation of legal norms to safeguard civil liberties. They announce a forthcoming bonus episode to further dissect the Supreme Court's ruling on the Alien Enemies Act and invite listeners to engage through upcoming patron-exclusive events.

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Key Takeaways:

• The DoJ under Trump has been systematically undermining legal processes, particularly through the misuse of state secrets and deliberative process privileges.
• High-profile cases like Abrego Garcia and Seacoat highlight the struggle for due process against executive overreach.
• Ed Martin's actions as the Weaponization Czar exemplify the weaponization of legal authority against political adversaries.
• The Supreme Court's intervention on the Alien Enemies Act marks a significant legal precedent restricting executive abuse.
• Ongoing internal conflicts within federal agencies, including the FBI's restructuring, reflect broader issues of accountability and mission creep.

Notable Quotes with Timestamps:

• Alison Gill (00:16): "The Trump administration lawyers have given Judge Boasberg documents they say show the United States does not have constructive custody over El Salvador seacoat detainees, but the Department of Justice submitted them under seal."

• Andy McCabe (03:55): "Rossman says, my head is spinning based on what I've heard from the government. They've told us nothing, Zero, nothing."

• Alison Gill (05:31): "Important to underscore the context here. We're talking about a single person removed to another country."

• Andy McCabe (08:55): "We have due process in the balance."

• Andy McCabe (51:41): "He is the embodiment of unjustified."

• Alison Gill (56:00): "Jim Comey is under investigation for posting 8647 on Instagram."

• Andy McCabe (60:05): "20,000 agents in 60 days. Not a chance."

• Alison Gill (62:53): "They work at DHS, FBI... everything has to have police on there."

• Andy McCabe (64:20): "Only Congress can suspend the writ of habeas corpus."

• Alison Gill (65:42): "The Emoluments Clause says the president cannot take anything of value from a foreign government."

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This comprehensive summary encapsulates the key discussions and insights presented in the UnJustified podcast episode, providing listeners and non-listeners alike with a clear understanding of the critical issues addressed by Alison Gill and Andy McCabe.

Transcript

[Alison Gill]

MSW Media.

[Andy McCabe]

Judge Sinise holds a hearing over whether certain discovery in the Abrego Garcia case is subject to state secrets and deliberative process privilege.

[Alison Gill]

The Trump administration lawyers have given Judge Boasberg documents they say show the United States does not have constructive custody over El Salvador seacoat detainees, but the Department of Justice submitted them under seal.

[Andy McCabe]

Ed Martin reveals that he's under investigation by the ethics office that handles attorney discipline in Washington and reveals he's working with January 6th defendants in his role as the weaponization czar.

[Alison Gill]

And Tulsi Gabbard has fired the intelligence officials that developed the assessment that Trende Aragua is not a proxy of the Venezuelan government. This is unjustified. Hey, everybody. Welcome to unjustified. It's Sunday, May 18, 2025. I don't know how we're gonna fit all this in, Andy. Hi, everybody. I'm Alison Gill.

[Andy McCabe]

And I'm Andy McCabe. Yeah. Okay, everybody out there, buckle in, get an extra cup of coffee, put on your cozy slippers, whatever you need, because this thing could go a little bit long. Lots of stuff happening this week. In addition to the headlines you just heard, we're also going to be discussing the DOJ shuttering the public corruption squad that aided Jack Smith in his investigations into Donald Trump and that Republicans in the House are trying to bring Jay Bratt in for questioning.

[Alison Gill]

Yeah. Yep. And you'll remember Jay Bratt worked on, I think he was in the public corruptions unit at Main Justice. Right. And he was working on the documents case and the January 6th case with Jack Smith's team. And we have our first judge deciding that Trump's invocation of the Alien Enemies act is actually legal.

[Andy McCabe]

And there's always one.

[Alison Gill]

There's always one. This one's in the Western District of Pennsylvania. And Jim Comey is under investigation for sharing an 8647 meme on social media. And after all that, we'll take some listener questions. Andy, let's dive in with the Abrego Garcia case. As you know, in order to get to contempt proceedings, you need to do a little discovery first. And Judge Sinis ordered that discovery, which was put on a week long hold after the Trump administration said they needed more time to facilitate the of Abrego Garcia. But then discovery resumed because nothing happened. And the Trump administration invoked state secrets and deliberative process privilege over a lot of what Abrego Garcia's lawyers were asking for in the discovery process. So per the rules, the judge has to address the privileges as a threshold issue before Discovery resumes. Right. And she set a hearing for this, you know, these privileges to discuss them, which happened on Friday, this, just this past Friday. And thanks to Anna Bauer at Lawfare and of course Kyle Cheney over at Politico, we have a really good play by play of that hearing.

[Andy McCabe]

That's right. The hearing began when Judge Sinise decided to unseal Marco Rubio's declaration invoking state secrets privilege, which is woefully insufficient because it simply declares the privilege without actually explaining how disclosing certain information would harm national security. The judge cites Wilkinson from the 4th Circuit to explain that the court can conduct an in camera review of the documents when the government's explanation is hollow as it is in this case. Now, the lawyer for Abrego Garcia, individual named Rossman tells the judge the government claims they have over 1,000 documents, but we received only 32 documents, not including our own interrogatory request, which were sent back to us.

[Alison Gill]

Oh my gosh. Rossman also said in this hearing, I don't want to get into sealed filings matters, but if the government in its filings is saying that they have asked for Abreco Garcia's return and it's coming from a mid level bureaucrat, but then his boss and his boss's boss is saying otherwise, then that doesn't seem to us to be compliant with the court order. And since a lot of these answers turn on privilege, the judge says she'll address the privileges first. And that's what this hearing was initially for. And the DOJ lawyer points out that the Supreme Court ordered the government to share what it can. This is the DOJ's argument about why they've only given 32 out of a thousand documents. Well, they said to share what we can and you know, we're arguing that we can't share pretty much anything. The judge said, look, I made a finding that SCOTUS was clear. I then amplified why the ruling was what it was. When I still didn't get a response from you. I asked three questions and then I required daily updates from people with personal knowledge. Then we get to the point where depositions were going to be taken and that's why I asked for people with personal knowledge. Each of those depositions were an exercise in utter frustration. I don't know how you can make the point to me that this was a good faith, a good faith effort to comply, at least with respect to the deponents. And the Department of Justice said, well, we didn't choose the deponents. And she snapped Back when I ordered the daily status updates, I said someone with personal knowledge should file the declarations. So you basically did choose these deponents.

[Andy McCabe]

Yeah. Nothing like DOJ completely abandoning their client. We didn't choose the deponents. Not the strongest answer, but nevertheless, at one point, Judge Sinise got into a back and forth with the DOJ lawyer, an individual named. Is that Gwyn? Am I pronouncing that right?

[Alison Gill]

I think so.

[Andy McCabe]

Okay, let's just go with that. About statements DHS had Kristi Noem made saying that Abrego Garcia would not return to the United States during the Trump administration, Sinise asks how that's not an admission that the government won't comply. And Gwyn replied, we are complying. We will comply. And the judge asked, who is we? What evidence is there of compliance? DOJ said they'd need a sidebar for that because it's privileged.

[Alison Gill]

Okay. And, well, at that point, Department of Justice lawyer said there's zero documents withheld based only on state secrets privilege, but there's 43 based on deliberative process. And then in the middle of that sentence, Judge Sinis breaks in. What am I looking at then? She's looking at the privilege log here. She says, I see one of those privileges invoked 1400 times. Wow.

[Andy McCabe]

Yikes.

[Alison Gill]

Then the attorney for Abrego Garcia, Rossman, gets a turn to address these privileges and discovery. And this is so well done. Rossman says, my head is spinning based on what I've heard from the government. They've told us nothing, Zero, nothing. Courts have moved with lightning speed. Went to the Supreme Court in six days, and it's been crystal clear since April 10 that the government knew exactly what it was supposed to do. The government says in filings that there's some sort of effort to comply, but I can tell you, Judge, there is zero evidence of that. All of the government officials have shouted from the rooftops that they will not allow Mr. R. Abrego Garcia to return to the United States. The government is delaying for delays sake at the expense of a person wrongfully removed who sits rotting in a foreign prison. I respect the court's decision on this, but the government getting more bites at the apple just allows them to keep doing this. Because the reason he's saying that is because the government wants more briefing on this privilege.

[Andy McCabe]

Of course.

[Alison Gill]

And Judge Sini says, I can give them a short period to cure their error, and everyone will be on notice that I don't think what I've been given is sufficient.

[Andy McCabe]

Well, Rossman continues on the State secrets privilege issue, it says. Important to underscore the context here. We're talking about a single person removed to another country. And it's very difficult to swallow from the position of common sense that this information would endanger the diplomatic relations with El Salvador. We could pool our imaginations to come up with potential or hypothetical things that could be state secrets. But rather than us talk about that in a speculative way, the question is, what have you actually done? And they know the answer. They either have done things or they haven't. What they could do is make a list of the things they've done and bring that to the Secretary of State, who can then assess and say, okay, this is okay to share, but the other part's not. But they haven't done that. A life is in the balance. We have due process in the balance. And there's the question of the role of the judiciary. In a speech last week, Justice Roberts said the judiciary is a co. Equal branch of. With the power to strike down obviously unlawful acts of the President or Congress.

[Alison Gill]

I like. I like that they brought up the. John Roberts.

[Andy McCabe]

Yeah.

[Alison Gill]

His. His continuing tour about. Of crying about how the leopards are eating his face, too.

[Andy McCabe]

Yeah.

[Alison Gill]

Next, the judge moves on to the deliberative process privilege. The government said context is important here. Expedited discovery was ordered, and collecting documents or preparing declarations from witnesses is a task that takes not days or weeks. That's what the government's arguing here. Months. At which point, Judge Sinis interjected, not in this court. If I order it, you do it. This is my court, and this is big. Because at that point, Judge Sinis asks the attorney for Abrego Garcia to come up and address the government misconduct exception to deliberative process privilege. So, yeah, wow. That's the big takeaway from this entire hearing, because you know how with the attorney client privilege, there's the crime fraud exception. You and I went over it with Eastman ad nauseam, with John Eastman and his emails from.

[Andy McCabe]

Yeah.

[Alison Gill]

From Chapman University. Well, so is true with the deliberative process privilege, it's not absolute. If there's government misconduct, that pierces the deliberative process privilege. Just like committing a crime pierces the attorney client privilege. Yeah.

[Andy McCabe]

Ask Evan Corcoran.

[Alison Gill]

Yeah.

[Andy McCabe]

All his notes from his discussion with his client ended up in front of the grand jury.

[Alison Gill]

Right. And that brings up a second lawyer for Abrego Garcia named Cooper.

[Andy McCabe]

Yeah. And Cooper tells the court, from the beginning, this has been a case about government misconduct. Cooper argued that the deliberative process privilege doesn't apply given the misconduct by the government. And then he turns to another exception, the compelling need exception. He says, that squarely overrides the invocation of the privilege here. This discovery is relevant and important. The government hasn't pointed to alternative sources of information. There's been no substance produced of information that's key and critical here. We only have roughly 30 documents that are relevant versus the 500 that have been withheld based in part on deliberative process privilege.

[Alison Gill]

Wow. Wow, wow. Yeah. And then the Department of Justice guy gets up, Gwen, to respond to what, you know, that Cooper lawyer just said. And he says, it's not clear from Cooper's discussion what misconduct is at issue. Is it a failure to provide information? Is it failure to comply with the court's order? And Judge Senior says, or is it all of the above?

[Andy McCabe]

Oh, man.

[Alison Gill]

And Gwyn says, look, that was an administrative error that he was removed to a country he shouldn't have been removed to, but that doesn't mean there was misconduct. And Judge Sinis interrupts, saying, no, no, no, no, no, no. During the first hearing, the government admitted that Abrego Garcia was unlawfully detained. There was an unlawful detention. And Anna Bauer says on Blue Sky. There's a long, awkward pause. And then Gwyn says for the DOJ that he can't speak to what happened at that hearing in which the government admitted that Abrego Garcia was wrongfully removed, which led to the firing of DOJ attorney Erez Raveni. And Zini said, come on, you know, you took over the case. You read that transcript. There's a bit of back and forth then, until the DOJ finally admits that Abrego Garcia was unlawfully removed. But that's not government misconduct. He says. That doesn't pierce the privilege. And at that point, they decide that the rest of what they need to discuss has to be done behind closed doors.

[Andy McCabe]

This could be the end of Mr. Gwyn's appointment at the DOJ.

[Alison Gill]

Yeah. Admitting there that what exactly? What are fired for admitting?

[Andy McCabe]

Yeah, exactly, exactly. And I mean, again, another pretty lame effort of distancing yourself from your client there. Hey, I wasn't here for that hearing. That doesn't matter, dude. You're on the record in this case. You own everything that happened until you, you know, you own it all. You're the lawyer. Ugh, what a mess.

[Alison Gill]

I know. And Judge Sinise does not seem super happy with what the government has done here. So they are going to come back from their break and they're going to have more of A hearing, but it's going to be behind closed doors so they can discuss things that have been filed under seal. And then at that point, I imagine Judge Sinis within the next few days will rule on the privilege. And if she says there's no privilege here or she wants to review these things in camera, because there was a lot of discussion in this hearing about, you know, what you, you brought up about Judge Wilkinson saying, look, if the government isn't supplying things or you think that the government is acting in bad faith, you can demand an in camera review to get the information you need. The court has the power and the inherent authority to do that. And Wilkinson, not a deep state Marxist woke lawyer. Okay. This is a 4th Circuit conservative, dude.

[Andy McCabe]

An icon of conservative jurisprudence in the fourth Circuit. And you know, I really, I really. Yeah, I really think she's being. Even though she's clearly frustrated for good reason, she's still giving the government a lot of leeway. She could have just dropped the hatchet on this thing and entered a really tough order for the government probably several hearings ago. But she's taking her time and really trying to tease out as much of a detailed record as she can because I think we are careening towards a contempt finding.

[Alison Gill]

I think we are too. And it's real hard to kind of skip around some of this due process in a case about due process.

[Andy McCabe]

Yeah, she wants to put a solid because it will immediately get appealed to the, to the circuit and she wants to put a solid product in front of them.

[Alison Gill]

Yeah. And eventually the Supreme Court. Right.

[Andy McCabe]

Oh, yeah.

[Alison Gill]

So anyway, everybody, you definitely need to follow Anna Bauer. Her courtroom reporting on Blue sky is really, really thorough and good. And right now I think they're having a pledge drive at Lawfare. So definitely follow Anna Bauer on Blue Sky. Give what you can so that they can keep doing the reporting that they're doing from the courthouse so that we can bring it to you. Yes, we wouldn't be able to bring it to you if we didn't have these folks, folks like Kyle Chaney, Anna Bauer, Josh Gerstein and etc. Ben Wood is Roger Parloff on the ground in the courtroom taking these, doing these, you know, live, live action posts about what's going on. Because as we know there, these are, these hearings aren't televised and Judge Sinis actually doesn't have a dial in number like Judge Boasberg does. So we really thank them for all their work and we really think you should support them if you get a chance.

[Andy McCabe]

Heck yeah, for sure.

[Alison Gill]

All right, we have quite a bit more to discuss in today's, today's episode. There's just so much more. We, we're going to talk about the Sea Coat case. You know, remember what's going on over in Judge Boasberg's court with the Alien Enemies Act. But we have to take a quick break, so everybody stick around. We'll be right back. Foreign hey, everybody, welcome back. All right. Over in the seacoat case in Judge Boasberg's court, the government is pushing back on discovery 2. This is a case that originated like March 15th, where the ACLU filed suit to block the administration from removing Venezuelans, five people, plus they wanted to expand the class to be nationwide that are said to be members of Trend Aragua 2 Seacoat prison in El Salvador. Boasberg ordered the planes be turned around, issued a temporary restraining order saying nationwide nobody can be sent away. And he was using apa, right, the Administrative Procedures act to do that. But the Supreme Court came back and vacated those orders saying, no, no, no, no, no, no apa, no ina. We have to do habeas petitions in the individual jurisdictions where people being detained in the United States are being detained. Right. So Boasberg issued a memorandum initiating contempt proceedings against the government for failing to follow those orders. Because you have to follow the orders, even if the Supreme Court comes in and vacates them, you have to follow them in the meantime. That's right. The Supreme Court also created a new rule for the ages from the emergency docket. As I was saying, they said you can't do a class action for everybody in the United States. Each person has to file their own habeas petition in the jurisdiction they're in. So the ACLU filed on behalf of their five original plaintiffs in Texas and New York. And then both of those judges ruled that Trump's proclamation violated the law, the aea, the Alien Enemies Act. An additional judge in Colorado did the same thing in response to a habeas petition there. So all these individual habeas petitions started popping up since you can't have a nationwide class. And then a Trump appointed judge in the Western District of Pennsylvania ruled the other way, saying that Trump's Alien Enemies act proclamation is lawful because the president gets to decide what an incursion means, which is just wrong. And that I'm sure will be appealed. But this judge said the 12 hour notice that the government's been giving in English on one piece of paper, not telling them what their rights are insufficient. So she said they should get 21.

[Andy McCabe]

Days so even the judge who thinks that we're under invasion because Trump says so acknowledges that that notice was not notice at all.

[Alison Gill]

Yeah, that. That wasn't. They weren't getting due process.

[Andy McCabe]

I guess that's a good sign. Yeah. So that's what they're doing to handle the cases of those detained in the United States. But what about the hundreds of people trapped in El Salvador? Well, as we discussed in prior episodes, the ACLU filed an amended complaint and a new class certification for those remaining in Seacoat. They filed this action in D.C. the district court in the District of Columb, the proper venue to contest detention for those held outside the United States. In fact, the district court in the District of Columbia actually has jurisdiction for every case, federal case, involving matters that happen overseas. So if you go overseas and you're murdered and the government investigates it and is able to bring a murder of a US Citizen case against the person who killed you, that case has to be brought in D.C. no matter where you lived or traveled from or where you were visiting or anything like that. That's just part of their unique jurisdiction in D.C. so the government argued D.C. does not have jurisdiction and that the government does not have constructive custody over people trapped in El Salvador. So they held a hearing, and Judge Boasberg ordered discovery briefings. And this week, the government filed its opposition to discovery in these proceedings. And that's what we're covering today.

[Alison Gill]

Yep. Yep. And here's the crux of the government's argument from their response on the docket. I'm sure you'll be really surprised. I have changed a couple words here and there to clarify who's asking for what. It says the ACLU's request for discovery is unwarranted. This is the Trump administration.

[Andy McCabe]

Right.

[Alison Gill]

The evidence produced by the government established that the United States does not have custody over the Seacoat class, even under the ACLU's preferred test. The government has now definitively proven that El Salvador is not an agent or intermediary who is indifferent to the detention of the prisoners. That's in sealed filings. This is the proof they've submitted under seal, and that El Salvador would not release the petitioners upon nothing more than a request by the United States. So, Andy, it appears that the government, in a sealed filing, produced some kind of proof that they don't have control over the detainees in El Salvador, despite the vast public record to the contrary, and that Bukele will not release the prisoners if the US Asks them to.

[Andy McCabe]

Right. So you're telling me that Abrego Garcia got moved to a non sea coat, much nicer detention facility on the eve of Congressman showing up to talk to him. Just because Bukele decided to do that on his own.

[Alison Gill]

Well, yeah, they're actually in the Abrego Garcia case arguing that, that El Salvador's movement of Abrego Garcia proves of course, that El Salvador has control over Abrego Garcia.

[Andy McCabe]

Oh, my God.

[Alison Gill]

Yeah.

[Andy McCabe]

Okay, so the government's response continues. They say petitioners request to delve even further behind the scenes of a diplomatic arrangement between the United States and El Salvador is improper for two other reasons. First, even though the government has voluntarily provided highly sensitive details about, quote, the conduct of foreign petitioners, ask this court to delve into the niceties of diplomatic negotiations. I can't imagine that's the word they use, but in any case. But such matters are so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference. Discovery in that context is thus unwarranted and inappropriate. Second, petitioners requests implicate areas duly protected by the executive privilege, the presidential communications privilege, the state secrets privilege, and the deliberative process privilege. They conclude like this. They say respondents have already provided the final documents governing the diplomatic understanding between the United States and El Salvador. So any responsive document would be cumulative. That should suffice. Based on the final governing documents already produced, this court should determine that the United States does not have constructive custody over the putative Sekote class and deny petitioners requests for yet more discovery. If this court does determine that some additional jurisdictional discovery is warranted, it should implement the usual discovery process with objections and responses. Isn't that what we're in here?

[Alison Gill]

Yeah. Isn't this the usual discovery process?

[Andy McCabe]

I mean, I think they want just a slower one where they get to file more crap. Because as you said before, the delay is the point.

[Alison Gill]

Yeah, absolutely. And this is not the Abrego Garcia case, but there's a lot of parallels.

[Andy McCabe]

Sure, Yeah.

[Alison Gill]

I mean, we have all, like the same privileges coming up. I, I think Bozberg will take this apart, but Boasberg has already shown huge skepticism over, like, for example, the state secrets privilege. He did a whole filing on this. Like, I really doubt it. I mean, you guys have been sharing photos with tail numbers and you can publicly look up where these planes are. And you've been saying, Bukele said, that they're what your agreement is about in, you know, generally speaking. And it seems like here too, someone has just filed a declaration saying this is what the agreement Between u. S. And the. And El Salvador says it without actually providing the actual agreement.

[Andy McCabe]

Yeah, yeah, that, that. That certainly could be. They can't really. In either case, they. They're going to have a hard time reconciling what they're claiming in court with what the leadership involved here. Rubio Gnome, you know, the list goes on and on. Have said publicly, like those public statements, the little snarky stuff they post on Twitter, whatever really undermines the government's position here.

[Alison Gill]

Yeah. And what I don't get is why they don't just get to the wall that I think we're going to run into, which is to have somebody testify or say, write a declaration that they have asked multiple times for the release of Abrego Garcia. They have sent a delegation, they have sent a letter, and they keep getting told no. The end. I think that that would actually satisfy what the supreme court is looking for here, which is that they tried to facilitate his return or the. The return of the people in seacoat, but they don't. They won't even get to that point. They want to throw all this privilege up there before they have to turn anything over in discovery first. You know what I mean?

[Andy McCabe]

Yeah, you're absolutely right. And I, And I do think as unsatisfying as a result as that would be. I do. You're probably right. If they actually ponied up the evidence to support whatever efforts they have undertaken, if they've actually undertaken any, I certainly don't take them at their word, then that might, that might be enough. But I will tell you, I have been involved in state secrets filings before, and they require a. An extraordinarily detailed disclosure to the court. Now, of course, the other side doesn't get that it's in camera, but it's. It's an. It's a very high standard because it's a. It's kind of the, like the nuclear option. You can take a civil suit. If somebody files a civil suit and what's at issue impinges upon a state secret, something that qualifies as a state secret, it's basically obliterates the lawsuit and the petitioner is just sent home with nothing, which is incredibly, you know, it's not what our system is designed to do. But the court, in very rare circumstances, will not allow a litigation to go forward if it actually does put a state secret in danger. So, like, I don't know how you hit that bar in front of any judge on these facts, but. Well, we'll have to wait and See, I guess.

[Alison Gill]

Yeah. I mean, unless you want to, you know, testify about your discussions with a break or with Bukele and that they went nowhere and he kept saying no and denied you over and over again. And. And that's the actual. And that actually happened. Maybe you can file that under seal and also satisfy what the Supreme Court ordered, But they won't even do that. They're saying, we can't even tell you about that because of, like, these 900 different privileges. We're going to invoke 1400 times, which.

[Andy McCabe]

Is the standard Trump legal team approach that we saw throughout the criminal cases last year. Right. In the Jack Smith cases and the other cases, it's all about, like, throw out a claim of privilege. When that one fails, throw out another one. That one fails, throw out another one. And sooner or later, they got one that worked, which was presidential immunity. Yeah, that's. I mean, it just really feels very familiar.

[Alison Gill]

Yeah, it certainly is, especially the delay part of that equation. Andy, this is just now hitting my feed. There's huge breaking news here as we're recording this. It looks like the Supreme Court in a seven to two ruling. I'll let you guess. The two has just issued an injunction, a preliminary injunction, blocking removal of. Of the petitioners in the Northern District of Texas under the Alien Enemies act case. So, yeah, wow. This was the case where the detainees filed a emergency temporary restraining order in the Northern District of Texas, but the judge there denied their motion. And then within hours, the Trump administration started telling detainees in the Northern District of Texas at the Blue Bonnet facility that they are going to be removed under the Alien Enemies Act. And they started putting these people on buses to take them to the airport in Abilene, right near Blue Bonnet. And this is, by the way, the facility where the men spelled out SOS in the yard.

[Andy McCabe]

Yeah.

[Alison Gill]

And then lawyers filed for emergency relief with the 5th Circuit and the Supreme Court. And that's when the Supreme Court, you'll remember, they came in at like, two in the morning and said, don't remove these people. Temporary restraining order. Wait until the Fifth Circuit rules on this. And, you know, Alito dissented right to that a couple of days later. Yeah, but they, but they stepped in in the middle of the night and put that out before Alito could finish writing his weird dissent. And at that point, then the Fifth Circuit dismissed the case and said that the. The petitioners, these. These migrants don't have jurisdiction here, which is dumb, because they do, because the Supreme Court just said they did. You know, when they said you have to file your habeas petition in your district.

[Andy McCabe]

Right.

[Alison Gill]

And it was the dismissal of that case in the 5th Circuit that allowed the Supreme Court to consider this a writ of certiorari. And that's what they're responding to, it seems. And they say the 5th Circuit aired and they're vacating their dismissal, saying, you do have jurisdiction. And they're remanding it right back to them, saying, you have to keep going on this. And in the meantime, nobody in the Northern District of Texas can be removed to El Salvador under the Alien Enemies act case.

[Andy McCabe]

Yeah. So this has basically shut that whole plan down. It doesn't address the fundamental legal question of whether or not the Alien Enemies act can be used in the way it's being used here. The, you know, the justification that we're being invaded by Venezuela via Trend Aragua, and therefore we can throw out anyone who is affiliated with Trend Aragua. So that's still a hanging question, but now we're in a position that the Fifth Circuit's going to have to weigh in on that issue. And also they're going to have to define what notice looks like, what appropriate notice looks like, and then that will go back to the Supreme Court.

[Alison Gill]

Yeah. And then we might get the first Supreme Court ruling on the legality of the Alien Enemies Act.

[Andy McCabe]

That's right.

[Alison Gill]

And so basically, what this ruling means. 7 to 2, Thomas and Alito dissenting. And there's like a really great post on Blue sky by someone named Aaron Reichland Melnick, who is an incredible follow, if you're looking. If you're following the immigration cases. He says that basically what this new Supreme Court ruling means is that the Trump administration is barred from using the Alien Enemies act to deport the men in Texas. Northern District of Texas and nationwide must give better notice under this ruling because they actually put in a footnote here. Hey, 12 hours, one page in English doesn't cut it.

[Andy McCabe]

Right.

[Alison Gill]

This isn't due process. And once the Fifth Circuit rules, this almost certainly goes straight back to the Supreme Court for a ruling on the AEA Proclamation itself. And so, Andy, you and I are actually going to. In light of this breaking news, I think you and I should record a bonus episode that'll come out tomorrow morning so we can go over this ruling in a little more detail. Are you into that?

[Andy McCabe]

Totally. Totally. Let's do it. This is like going back to our past, our Jack Smith past. Something big comes out. We're just gonna lay it out there for people to hear for themselves. It's an impactful ruling and pretty much of a smackdown of the 5th Circuit. So that's always interesting. And it's not too long. I think the whole thing's only about 24, 25 pages. So. Yeah, we're gonna bring that to you.

[Alison Gill]

Yeah. Okay, cool. Yeah, I'm looking forward to that, because I think it's important that everybody knows what's in this because it's gonna impact. I am waiting now. Like, I kind of wish the Abrego Garcia hearing had happened after this ruling came down, because I'm sure it would have been brought up. But. Yeah, we'll do that. We'll do that. We'll release it first thing tomorrow morning. So you'll have two episodes of Unjustified this week.

[Andy McCabe]

Excellent.

[Alison Gill]

And I don't know how I'm going to get through the rest of the show with this news on my mind, but we can do it. We can do it.

[Andy McCabe]

Let's carry on.

[Alison Gill]

Let's carry on. But that's a big thing. All right, so next up. Remember last week, Andy, when we talked about a second Intelligence Community assessment about Trend Arragua not being a proxy for the Venezuelan government?

[Andy McCabe]

Yeah.

[Alison Gill]

Totally undercutting Trump's reason for invoking the AEA in the first place.

[Andy McCabe]

What is it? First time, shame on you. Second time, shame on me. This is like, shame on you. And second time, even more shame on you.

[Alison Gill]

Even more, shame on upon you and your house. And how that. By the way, that intel memo, we talked about this, it was released through foia, and you and I are like, oh, somebody's going to get fired. Well. Well, they have. We have our answer. This is from the Post. Tulsi Gabbard has fired the top two officials at the nic, the National Intelligence Council, weeks after the Council wrote that assessment that contradicted Trump's rationale for invoking the AEA and deporting alleged Venezuelan gang members without due process. Gabbard removed Michael Collins, acting chair of the National Intelligence Council, as well as his deputy, Maria Langen Reikoff. And that's according to a spokesperson in Gabbard's office. Gabbard is taking two other steps, by the way, that appear intended to buttress the role of her office. She's moving the office that creates the PDF, the President or the pdb, the President's Daily Brief. And she's moving the National Intelligence Council, the two people she just fired. She's moving those offices from the CIA to her office, the odni.

[Andy McCabe]

Well, that'll go well because she has such a Deep background with producing finished intelligence for the President. Oh, wait a minute. That's right. She doesn't at all. I mean, first of all, I feel terrible for Mr. Collins and Ms. Langan Rykoff. It's a tough spot to be in. I feel for you.

[Alison Gill]

Trump asked him to REASSESS the original February 26th intelligence memo, and they did.

[Andy McCabe]

Yeah. This is just going, this is, this is going nowhere good for America because it's, it's the kind of Trump ification of intelligence products. Right. We're going to start, we're going to, we're going to go back in time to that era, post 9 11, when it was, you know, the CIA was producing intelligence about Saddam Hussein's role in 911 because they knew that's what the President wanted to hear. And of course it was not true. So. Yeah, so she moves this, the PDB office into the dni. That will also come with changing the staffing and putting in a bunch of people whose opinions she likes. And then that's how the actual intelligence products end up getting changed, which means we'll have less accurate, less truthful, less competent intelligence assessments. So as a nation, we'll be a little more blind.

[Alison Gill]

I hope there's still some good analysts there. I remember Miles Taylor. I did an interview for his book Blowback, and he told a story about how he had to turn an 80 page brief from the Pentagon on why pulling out of Afghanistan was a bad idea into a one pager. In Trump's voice and just across the top he put, don't be a loser. Pulling out of Afghanistan will make us look like a loser. We want to be, we want to look like winners. And then like, it's just a one page thing, like about why it's bad to pull out of Afghanistan. And Trump actually read that and listened to it because it was one page and it was in his voice.

[Andy McCabe]

Yeah.

[Alison Gill]

So I don't know, maybe we'll get intelligence assessments like, like that. I don't know. I just, I envy anybody who has to be in a position where you're asked to do your job and if you do it properly, you could, you'll be fine.

[Andy McCabe]

You're going to get fired. Yeah. Your job is to tell the truth to the President so that the President knows and understands what's happening in the world and can use that information, make good decisions to protect country. But if you tell this President a truth that he doesn't want to hear, you're gone.

[Alison Gill]

Yeah, absolutely. All right, we have, we have more news to get to about our good friend Ed Martin, for example, and a few other stories. But we. Again, we have to take another break, so stick around. We'll be right back.

[Andy McCabe]

Welcome back. Okay, we have some interesting news on the new weaponization czar, Assistant Deputy Attorney General, pardon Attorney Ed Martin.

[Alison Gill]

Is that his new title?

[Andy McCabe]

I think so.

[Alison Gill]

The wca. D, A, G, P, A. I feel.

[Andy McCabe]

Like Ed Martin just covers it all.

[Alison Gill]

Like, once you say Ed Martin, wackadagpa. Yeah, that's what he is. The Wackadagpa.

[Andy McCabe]

Do we now have the title for this week's show?

[Alison Gill]

Yeah. Okay.

[Andy McCabe]

Excellent, excellent. Okay, so this reporting comes from the Washington Post. Justice Department official Ed Martin, whose nomination to serve as U.S. attorney in D.C. stalled in the Senate, is under investigation by an ethics office that handles attorney discipline in Washington. He said in an office wide goodbye email on Wednesday. All right, pause. Hard pause here. Who puts that in their goodbye email? I mean, hey, it's been great. You guys are terrific. Keep protecting America. It's been such a privilege working with you. And, oh, by the way, I'm under investigation and might lose my law license. If anybody has an extra, send it my way because I might need it. Just.

[Alison Gill]

Yeah, bye. I mean, Ed came in. Bye. Felt cute. Might delete later.

[Andy McCabe]

Ed, take out the editor. Right. I mean, just think about taking. Saying less. Really editing. Okay, sorry. On his last day as interim U.S. attorney before heading to the Justice Department, Martin alerted his office's roughly 350 attorneys and 400 staff members to this matter, while claiming that his confidentiality had been violated. Also an odd topic for a goodbye letter, but okay. Martin alleged that the Legal Ethics Office, called the Office of Disciplinary Counsel, had inappropriately notified a unit of his U.S. attorney's Office of probe. Now, Martin identified the case number, in case anybody wanted to look it up, as 2025 D is in Delta 047, but not the specific allegations against him. Come on, Ed, what happened? In the spirit of transparency, Democratic lawmakers and groups have accused Martin of abusing his power, seeking the suspension of his law license or other penalties. In complaints lodged with the Office of Disciplinary Counsel's Chief Hamilton Phil Fox, they allege that Martin has used the threat of prosecution to intimidate and chill the speech of perceived adversaries, such as lawmakers, protesters, journalists, medical journals and others. I think you could probably add law firms and universities to that list. And others that he said opposed the agenda of President Donald Trump or his billionaire advisor, Elon Musk, even in instances when they did not commit a crime, but, quote, acted Simply unethically.

[Alison Gill]

I remember that tweet.

[Andy McCabe]

Yeah.

[Alison Gill]

A lawyer found to have violated ethics rules can be subject to law, license suspension or other penalties, although the process can take years. As we've noted in a letter Martin attached to his email. Again, why?

[Andy McCabe]

Head. Come on.

[Alison Gill]

He asked the court that oversees the counsel's office to suspend and investigate Phil Fox and dismiss his case, claiming it was being weaponized by Fox against him. Now, Martin said he objected to being mailed a copy of the complaint against him and related materials and that a separate copy was emailed to an intake address for the U.S. attorney's Office Civil Division. He says, quote, it appears that Phil Fox wanted people to know about this complaint. Why else would he email it to intake email box of the U.S. attorney's Office Civil division when he already had my work and personal email accounts? That's what Martin wrote in the letter, his goodbye letter, which was viewed by the Washington Post because he sent it to 4. 750 people.

[Andy McCabe]

How many of those 750 while reading it were like, oh, my God, why did he send this out?

[Alison Gill]

Martin's letter appeared to describe a notification process used when a lawyer does not respond to a complaint as required. So he didn't respond, and that's why they sent it to that inbox. On Wednesday, some members of the U.S. attorney's office said they found Martin's email perplexing. Quote, his complaint was that it was confidential, but then he reveals it to the whole office. That's what one person said, speaking to.

[Andy McCabe]

Those smarter, smarty pants attorneys on the.

[Alison Gill]

Condition of anonymity for fear of retaliation. He said, quote, it's not like any of us knew about this. Now they do.

[Andy McCabe]

My God, I'm gonna miss that guy.

[Alison Gill]

Oh, he'll still be doing stuff as the.

[Andy McCabe]

All right.

[Alison Gill]

CAD pa.

[Andy McCabe]

The Wackadag paw.

[Alison Gill]

The Wackadagpa. The weaponizations are Assistant Deputy Attorney General, Pardon Attorney.

[Andy McCabe]

I'm. I'm literally choking over here. I'm sorry. The. The Wagadag pa. Okay, all right.

[Alison Gill]

I thought the pay dag was too many, but we've.

[Andy McCabe]

We're out of. We're beyond pay dagger making fun of territory here with wackadag pop. Okay, next up from ryan Riley at NBC. The FBI's Washington Field Office is folding its federal public corruption squad, the same unit that aided Jack Smith's special counsel investigation into President Donald Trump. Three people familiar with the matter tell NBC News the field office has three units. They're actually referred to as squads, but nevertheless, that work on Public corruption issues. But this one, known internally as, quote, CR15, that stands for criminal squad 15, for those playing at home, was deeply involved in the Bureau's Arctic Frost investigation, which was the precursor to the Smith probe into efforts to overturn the 2020 election results by Trump and his allies. That investigation resulted in one of the two federal criminal cases against Trump, both of which were dropped after his election.

[Alison Gill]

Arctic Frost, all right.

[Andy McCabe]

Yeah. It's not bad one, right?

[Alison Gill]

Not bad.

[Andy McCabe]

Well done, folks. FBI special agents assigned to the squad will be reassigned. An FBI official said the change was part of a broader reorganization at the Washington Field office and that there would be additional changes to come. Oh, I bet there will. And that public corruption cases would still be pursued.

[Alison Gill]

No, not, not, not real ones, no.

[Andy McCabe]

The move to shutter the unit comes amid a major shift of FBI resources towards immigration enforcement, an area that is primarily the responsibility of U.S. immigration and Customs Enforcement. It's actually exclusively their responsibility. But anyway, ice, which is part of the Department of Homeland Security, a top leader in the FBI's Washington Field Office, was also recently reassigned, two people familiar with the matter said. An FBI official said the person was not reassigned for any adversarial reason. Oh, sure.

[Alison Gill]

So they're gutting the public Public Integrity section. They're gutting the public corruption squads. They're getting rid of white collar. They're taking people off white collar stuff. Getting rid of the Joint Terrorism Task Force, moving everybody to ice folks.

[Andy McCabe]

The reign of retribution continues. This is not going to end anytime soon. If you thought that our, our friends and colleagues at the FBI who simply showed up and worked the cases they were supposed to work, that they were assigned to work, were out of the woods. They are not. And there's not anyone in the FBI to include its current director who's going to stand up for them and protect them and protect the work that the FBI needs to do. You know that 30% of FBI agents being, or you know, Cash Patel telling the FBI that agents should be spending 30% of their time on immigration matters and that the white collar crime program will be kind of scaled down as a result. That's work that no one else does. That's. Your state and local police departments can't do that. White collar program, it's long term, complicated, document intensive, data intensive investigations. They're just not going to get done. Which means that, you know, your, your grandparents and elderly parents are more likely to get scammed by cyber fraudsters. White collar.

[Alison Gill]

Nothing will be done about the White House collar crimes.

[Andy McCabe]

No, no, none of that. So this is another bad sign for the home team here.

[Alison Gill]

And there was a little bit of that jockeying back in the old days of the first Trump administration when, you know, Barr would put some guy in charge of specifically getting all the juice from Rudy Giuliani so that it didn't go through normal channels. And like, they would he just kind of move US Attorneys around and assign them to specific things and assign like David Weiss to look into Hunter Biden and Burisma. But now that the, the Trump administration has gone out on a limb and says that special prosecutors are no longer a thing. Yeah, they're just gutting whole departments and moving everybody to ice.

[Andy McCabe]

Resources have to get moved. Every now and then, threats change the work. The volume of the work you do in one place or another shifts and changes, and you have to respond to that. And it often provokes a negative reaction by the people on the ground who are doing the work that don't, they don't want their lives and their work lives to be changed like that. But that's not what we're talking about here to, to, to rip the guts out of the white collar program after you've signed an executive order ordering the Justice Department to no longer enforce the Foreign Corrupt Practices act law. That's a campaign to take the teeth out of the government's ability to hold white collar offenders, wealthy offenders, people in the business community, in the private sector who are committing frauds that cost people millions and sometimes billions of dollars.

[Alison Gill]

Elected officials.

[Andy McCabe]

That's letting them off the hook. We're not interested in holding them accountable anymore.

[Alison Gill]

Nope. All right, you, you mentioned the, the retribution tour, and we have a couple of examples of that. But we have to take one last quick break, and then we'll get to listener questions. Stick around. We'll be right back. Hey, everybody, welcome back. All right, just a couple of quick stories before we get to listener questions. First up from your colleague, Andy, Paula Reed at cnn, Shout out.

[Andy McCabe]

Paula Reed.

[Alison Gill]

Paul, a key federal prosecutor in the classified documents declined to answer questions during a House Judiciary Committee deposition Wednesday, invoking his Fifth Amendment right as a spokesperson suggested the government had been weaponized against him. Jay Bratt. This is Jay Bratt, former Justice Department national security prosecutor who spearheaded the case in which Trump was charged with retaining classified national defense documents, taking them from the White House after he left office and resisting the government's attempt to retrieve the materials and obstructing the government's attempts to retrieve those materials. I don't know how the pool flooded the server room. I Don't know, it's just, it's a mystery. He entered the committee room. This is Jay Bratt on Wednesday morning, this past Wednesday. And two sources familiar with the matter confirmed he invoked the Fifth against self incrimination. And he left after a little less than two hours. Quote, this administration and its proxies have made no effort to hide their willingness to weaponize the machinery of government against those they perceive as political enemies. That's what Brat spokesperson Peter Carr said in a statement to cnn. And he went on to say that should alarm every American who believes in the rule of law. In light of these undeniable and deeply troubling circumstances, Mr. Bratt had no choice but to invoke his Fifth Amendment rights. House Judiciary Chair Jim Jordan declined to comment on Brat's deposition, but told CNN he has a list of other former DOJ officials he wants to interview. David Weiss being among them.

[Andy McCabe]

Yeah, that is, I'm sure that that really bothered Mr. Brat to have to go in there and do that. No one wants to do that because always raises this implication that like, oh, you must have something to hide. I don't believe for a second, yeah, I don't believe for a second that Jay Brat has anything to hide. But this is the only thing any smart attorney would say to him. You cannot go in there and share any information with them because they will use it against you.

[Alison Gill]

Yeah. And this was a behind closed door deposition which Jim Jordan has a long and sordid history of cherry picking for public consumption.

[Andy McCabe]

If they're going to actually prosecute him for some trumped up charge, he that would be a prior statement on the record that they would then turn around and try to try to manufacture some sort of inconsistency with. So like, yeah, he had to do this, but I feel terrible for the guy.

[Alison Gill]

Yeah, me too.

[Andy McCabe]

So as we know, our buddy Ed Martin has been ousted as D.C. u.S. Attorney and now has three jobs at DOJ, rendering him the Wakadagpa. Wakadagpa. One of his jobs as Wakadagpa is the weaponization czar. That same CNN report tells us this. At a news conference, Martin suggested that in his new role he would seek to identify and embarrass people even if he could not charge them. Now let that sink in for a second quote. This is Ed's quote here. There are some really bad actors, some people that did some really bad things to the American people and if they can be charged, we'll charge them. But if they can't be charged, we will name them and we will shame them.

[Alison Gill]

That is, first of all, a huge violation of Department of Justice policy against releasing the names of unindicted people.

[Andy McCabe]

Yes, it is. And possibly even a violation of their privacy rights. But let's go on. Ed continued to say, and in a culture that respects shame. What culture is that, Ed? I'm really not sure. And in a culture that respects shame, they should be people that are shamed. And that's a fact. That's the way things work. And so that's how I believe the job operates.

[Alison Gill]

So his job at the DOJ is to violate DOJ policy. Okay.

[Andy McCabe]

This guy is a disgrace to the practice of law, to the Department of Justice, to the D.C. u.S. Attorney's office. And he's just like that bonkers that he comes out and says the quiet part out loud.

[Alison Gill]

I know.

[Andy McCabe]

So you don't have to guess, like, what is he up to? And how far off base is he in terms of his understanding of, like, the law and what's constitutionally permissible? He. He is truly the wackadag Pa. Yeah.

[Alison Gill]

He'S the wackadag paw for sure. All right. And by the way, that screed about naming and shaming people that aren't indicted made its way into the FBI agents lawsuit against the government. This is the one that asked the court to block the DOJ from releasing the list of names of FBI agents who worked on January 6th cases out of fear of retaliation. Remember St. Driz Driscoll, who. Who didn't at first supply the names and only gave numbers identifying people trying to stand up for. For the agents there that he was accidentally put in charge of because of a typo.

[Andy McCabe]

He should have only given, like, HRT esque nicknames.

[Alison Gill]

Right?

[Andy McCabe]

Here's Thor's Hammer, Arctic Frost. Johnny Thunder.

[Alison Gill]

Johnny Thunder. Tony. Tony the big fish.

[Andy McCabe]

You know, Bovet's head would have exploded. Like, who's Johnny Thunder? You don't know a last name?

[Alison Gill]

You don't know. You claim to be down with the people who work for this.

[Andy McCabe]

Come on, dude. Johnny Thunder. Everybody knows Johnny Thunder.

[Alison Gill]

Everybody knows Johnny Thunder. But anyway, that press conference thing that you just read made it into this lawsuit, rightfully so. Right. And it was just a notification to the court. Right. The plaintiffs, the FBI lawyers were like, Mark Zade is one of them, who I just had on the Daily Beans podcast representing these FBI agents. Just wanted to say, hey, Court, we just want to let you know that Ed Martin just said this. Yeah, okay. And he. Here's what the. The notice to the court said Mr. Martin's statements represent new, relevant facts worthy of the court's attention while it considers our requested relief. First, the statement indicates that Mr. Martin, speaking in his capacity as a senior DOJ official and a leader of the Weaponization Working Group, has indicated a clear, unmistakable intent to name and shame federal employees, I. E. The plaintiffs who investigated January 6th. Because that's, quote, how he believes the job operates. Second, it confirms that DOJ leadership values their version of the truth coming out over some procedure. This is particularly relevant where Mr. Martin is widely known to believe, as he has publicly stated, the January 6th insurrection was a fraud and a hoax orchestrated by the FBI. Third, it indicates that the Department of Justice leadership is in regular contact with January 6th defendants who are imploring them to release information such as the survey results at issue in this slated litigation. Survey results being the list of FBI agents?

[Andy McCabe]

That's right. So they go on to say. Further compounding the threat to plaintiffs is a recent New York Times report that indicated Attorney General Pam Bondi has granted the Department of Government Efficiency Personnel access to DOJ systems. As this court is aware, the list of names of FBI personnel who participated in the January 6 investigations and prosecutions exists on DOJ systems. Following then Acting Deputy Attorney General Emile Beauvais demand for FBI to send the names to doj, plaintiffs submit that their requested relief as set forth during the April 30, 2025 hearing which requested that the DOJ be ordered to destroy the list it created of the names of FBI personnel, in addition to issuing an injunction preventing defendants release of the list beyond DOJ remains the only outcome that will ensure the safety of plaintiffs.

[Alison Gill]

Yeah. So boy Ed Martin doing a favor for the FBI plaintiffs in this particular lawsuit.

[Andy McCabe]

He is the embodiment of unjustified.

[Alison Gill]

Yes, he really is. Absolutely. And we'll see what Judge Jeanine Pirro ends up being like taking his place. And whoever comes after her and whoever comes after them. All right, Andy, you ready for this?

[Andy McCabe]

Yes.

[Alison Gill]

From Reuters, US President Donald Trump is accusing Jim Comey of calling for his assassination in a quote unquote coded post on social media, rejecting the former FBI director's explanation that he was not aware of any violent connotation of his post. U.S. law enforcement officials are investigating an Instagram photo posted by comey of the numbers 8647 formed by seashells with the comment cool shell formation on my beach walk. Trump and his allies say this is an assassination threat. U.S. secret Service Director Sean Curron, quote, is leading the investigation into the threat, according to Tulsi Gabbard, the Director of National Intelligence. She told that to Fox News on Thursday night. And by the way, Trump and his allies sold all kinds of 8,646 merch during the Biden administration.

[Andy McCabe]

Yeah.

[Alison Gill]

Now, Gabbard dismissed Comey's explanation, saying it's not violence. She dismissed that as absurd, saying 8647 has been used by anti Trump protesters and was a veiled call to action against the sitting president. So. All right. Delulu much? I don't know what to say about this, but Jim Comey is under investigation for posting 8647 on Instagram.

[Andy McCabe]

This whole thing is ridiculous from start to finish. This as a, as a policy matter. When people make any kind of threat, even one that you think is kind of silly, maybe it's not really a threat, whatever. When the Secret Service becomes aware of it, they look into it, which basically means they identify the person that said it and they go sit down and talk to them and make an assessment as to where.

[Alison Gill]

I'm thinking of Kathy Griffin, who held up a decapitated head of the, of, of Donald Trump.

[Andy McCabe]

Yeah.

[Alison Gill]

They went, talked to her, got the story and left her alone.

[Andy McCabe]

Yeah. So is, so would they do that here? I assume they probably will. They'll sit down and talk to him and they will if they can. If they handle it the way they handle literally hundreds and hundreds of these things that come across their desk every year, they'll walk away from that conversation and take no action. That's what should happen here. I mean, I think this is an impertinent thing probably for Jim to put up. I'm not going to guess it, his motives or what was in his head. I have no idea. But if anybody thinks that Jim Comey is an actual danger to the President, United States, I mean, come on, it's. The whole thing is pretty silly, but.

[Alison Gill]

I wouldn't put it past the weaponization czar to shop around some grand juries and see if you never know any. Do you know any other time in history when an attorney general has shopped around to a couple different grand juries trying to indict a political enemy?

[Andy McCabe]

It happens.

[Alison Gill]

It doesn't.

[Andy McCabe]

It does happen. I can tell you that does happen and it's awful and it goes on for years. But obviously that should. I really hope that does not happen here. But yeah, this is just kind of a, it's unfortunate and I hope that they resolve it the right way, which is to not really do Much more than look into it. Preliminarily.

[Alison Gill]

Right. To ensure that the president's safety. Right. That's their job. All right, we. I think we have time for a question from a listener again. If you have a listener question, there's a link in the show notes you can click on to submit your question to me and Andy. So what do we have this week, Andy?

[Andy McCabe]

All right, so I got two for you. The first one is just a little. It's not even a question, but I kind of liked it. It came comes to us from someone who identifies himself as anonymous. She. Her and. And she said quick correction on the pronunciation of perk. The law firm Perkins. And then of course the second name is spelled C O I E. She says it rhymes with gooey, which I love that because I always get stuck on that name. So it's Perkins Cooey. Right. Perkins Cooey. I think we get that. Right. But thanks for the.

[Alison Gill]

I also hear it Coey sometimes.

[Andy McCabe]

Yeah, she seems pretty intense, so I'm going to go with her just because I like that she used the word gooey.

[Alison Gill]

All right.

[Andy McCabe]

All right. So John sends in a couple of questions here and I kind of like them because you really hit the whole spectrum of different things that we're dealing with. So maybe do these as like a little bit of a speed round if that works for you.

[Alison Gill]

Yeah, let's do that.

[Andy McCabe]

All right, here we go. John says, hey, I love the show and all. Everything that you guys do. First one is, what are your thoughts on the reports about DHS ICE being ordered to recruit 20,000 agents in 60 days. Can DHS simply deputize willing individuals in mass. Okay, John, Here you go. 20,000 agents in 60 days. Not a chance. That'll never happen. And this is the same thing they said in the first term they were going to hire 25,000 Border Patrol agents in one year. And of course it never happened. They got like five or something. I don't know. I don't know what the number was, but it was not 25,000.

[Alison Gill]

Yeah, it was around 5,000. And now I think they're trying to get 20,000 National Guard to. To do this. However, National Guard does not have power to arrest people or.

[Andy McCabe]

Right.

[Alison Gill]

They're just. They can. They can like operationally assist, but they can't actually enforce the law.

[Andy McCabe]

Right. So can they simply deputize willing individuals? My understand. I mean I'm not, not an expert on this. My. I am familiar with people being deputized to serve on federal task forces. It happens all the time, it's when you have, like, a local or state police officer that wants to work on the JTTF with the FBI or maybe a Safe Streets Violent Crimes Task Force. You deputize them as federal marshals. That gives them federal arrest authority. And they can work with the same powers that agents have, but they're law enforcement people to begin with, so I'm not. I don't. Can you just go out and start deputizing randos who have A personally owned AR15 to start rounding up immigrants? I'm not aware of that, but wouldn't.

[Alison Gill]

Put it past them.

[Andy McCabe]

I wouldn't put them past them trying it.

[Alison Gill]

Okay, yeah. Like, remember how the US Marshals deputized Elon Musk's private security guys to be.

[Andy McCabe]

There you go.

[Alison Gill]

U.S. marshals.

[Andy McCabe]

Yeah, yeah, yeah. Make your own badge. Here's a gun. Have at it. All right, second question. What's the legality of government agents hiding their faces and badges, etcetera, as ICE is being accused of? Okay. There's no legal requirement that government agents show their faces during an arrest. When they're out there conducting operations. You might find it to be creepy or unethical. That's your own decision. But there is no legal obligation to show your face.

[Alison Gill]

The.

[Andy McCabe]

There is an obligation. It may be grounded in policy, not law. Yeah, that you show your badge and id, you're badged with a number on it and your affiliation, like what agency.

[Alison Gill]

You work, hsi, atf, FBI. And it's got to have police on there, and it's got to be, I think, at least 3 inches tall or something like that. I think that's all policy.

[Andy McCabe]

It's all policy. And a lot of that stuff is to protect them as well. Like, you want other law enforcement people, especially now that you got all these mishmash teams of people from different places working together. Want the people who are out there with guns to know that you are on their side, because if they see you with a gun and you're not clearly identified, you can end up shot. But there is no. There's no requirement of. Of showing your face. Okay, next one. Can you explore the suspension of habeas corpus as well? This is. This could take a while. I'm going to do this quickly, though. Under what circumstances can it happen? And how cooked are we if they risk and try it? So under the Constitution, that thing. The ability to suspend habeas corpus is a power given exclusively to Congress. It is in Article 1 of the Constitution. So only Congress can suspend the writ of habeas corpus. And they can only do it in. I forget the actual language, but it's time of, like, rebellion or invasion or something like that. I can't. I'm blowing the actual quote. The President does not have the, the solitary ability to do that. That's why almost every person who's talking about this publicly is saying if the, If Trump tries to do this in an executive order, it will be, like, unconstitutional from.

[Alison Gill]

Sure.

[Andy McCabe]

From jump Street.

[Alison Gill]

But that won't stop him from doing it on the down low and then acting on it and then having it go through the courts afterwards like he did with the Alien Enemies Act. Yeah, but at least the President can declare the Alien Enemies Act. In this case, it has to be Congress, right?

[Andy McCabe]

Yeah, in this case it has to be Congress. Now, Lincoln did it during the Civil War. It's one of the few times it's ever happened and people point to that. The reason Lincoln could do it was because there was no Congress sitting at the time of Congress had, had basically headed for the hills during the war. So that was. That is seen as an exception. That will never happen again. Okay, finally, there's another big one. We're going to cover it quick. Can you explain the emoluments clause and how the Qatari 747 fits into that? So he's referring to this gift by the government of Qatar to Donald Trump of a 7478 that Trump intends to use as Air Force One. And there's almost no interpretation that could justify this under those circumstances as not a violation of the emoluments clause. The emoluments clause says the president cannot take anything of value from a foreign government. And this is a $400 million airplane.

[Alison Gill]

It is an old crappy one, though, that would cost about a billion dollars to retrofit with everything that Air Force One would need and would take, like, more years than he has left. Yeah. But that it would be his at the end of it. And, you know, I've seen him use the Statue of Liberty as a, as a analog to this. Like, oh, well, Statue of Liberty was a gift. Was. We were supposed to turn that. Just turn that down. Well, first of all, it's not in the presidential library. The guy who was president at the time, it's in the harbor. Second of all, you don't care about what it says on the Statue of Liberty, but that's beyond the point. And third of all, Congress voted on the ability for us to accept this gift from France. So if they want to do Congress voting on the plane. On the Qatari plane. Cool. Bring it on. I would love to see that vote.

[Andy McCabe]

Right. Because that's also in the emoluments clause. You cannot, if you're president, you can't accept a gift from a foreign government unless Congress approves. So, yeah, so the, the Statue of Liberty, that's an example of the emoluments clause being working the way it's drafted here.

[Alison Gill]

And, and of course, the Republicans flipped out when Hillary got and returned a $400 necklace from Bangladesh. That was, of course.

[Andy McCabe]

Yeah.

[Alison Gill]

A total violation of the Constitution. And she's clearly in the pockets of the Bangladeshis. And, oh, my God, I can't believe she accepted this gift. But she, she, you know, even she gave that back. It said she couldn't accept that gift there.

[Andy McCabe]

And there's also, by the way, absolutely no way to ensure that this plane will not present a counterintelligence risk flying around the pressure.

[Alison Gill]

Tulsi Gab could do a really good sweep. Very thorough.

[Andy McCabe]

Absolutely preposterous. But yeah, no, it's not a problem. All right, so John finishes by saying, none of this makes sense. It's like the Twilight Zone. Agreed, John. That's the one thing I'll say yes to in all your questions. All right, there you go. That's the speed round for this week.

[Alison Gill]

Thank you. Great questions, everybody. If you have a question, there's a link in the show notes. Sorry, we went a little over an hour, but we had a lot to get to. We had that breaking Supreme Court ruling. Like I said, tomorrow morning we're going to be releasing a bonus of us going over that ruling in detail so you can look for that free public episode. And that's just one of the many things that we provide to our listeners here at Unjustified.

[Andy McCabe]

It's a gift from us to you.

[Alison Gill]

Yes, Indeed. Happy May. What? 19th. Happy May 19th to you.

[Andy McCabe]

Yay.

[Alison Gill]

May 13th was the one year anniversary of me sitting in the courtroom listening to the Cohen testimony against Donald Trump in New York. Mark a year. It's been a year.

[Andy McCabe]

Wow. More than that.

[Alison Gill]

I know it seems like a decade ago, a lot happened, but also a minute ago. All right, everybody, we're going to be back next week with, I'm sure no news. Nothing's going to happen. Sure to just be a very, very scant show with very little information, but really appreciate you listening, really appreciate your thoughtful questions. And also I want to announce that this coming Friday, we're going to have a happy hour zoom for our patrons, patrons of the Daily beans. Patrons of Unjustified and patrons of cleanup. On all 45, we're going to have Harry Dunn and you're going to be joining us. Andy McCabe.

[Andy McCabe]

Yes, I will. Bringing my charm and dumb jokes. And I'll be enjoying a cocktail right along with everyone.

[Alison Gill]

Wonderful. So if you are a patron, you will get that invite in your inbox this week. Check your junk too, because MSW media is just so cool and super big and corporate that tends to go into junk mail. I don't know why. And also, if you aren't a patron and you want to become one, you want to get these episodes ad free. You want to get them early. You can sign [e-mail] MullerShiprote Heck yeah. So and then you'll get access to the these zoom happy hours and like I said, the ad free episodes gala tickets pre sale tickets for live events. We have all kinds of cool stuff for for patrons. So we really appreciate everyone listening and we'll see you next week.

[Andy McCabe]

I've been Allison Gill and I'm Andy McCabe.

[Alison Gill]

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 justice. For more information please visit mswmedia.com.