Andy McCabe (3:20)

Yeah, definitely. So, okay. CBS News reports that Minneapolis is reeling after an ICE agent fatally shot a woman on the city's south side on Wednesday Morning. The victim, 37 year old Renee Good, described herself as a, quote, poet and writer and wife and mom who had recently moved from Kansas City, Missouri. The agent who shot Good was a member of a specially trained tactical unit within the ICE Enforcement and Removal Operations. A senior Department of Homeland Security official confirmed to CBS News he was previously dragged by a car when trying to arrest a man in Bloomington, Minnesota six months ago. Court records from that incident indicate that the officer the DHS says shot Good was Jonathan Ross.

Allison Gill (4:09)

Yes. And according to CBS News, Minneapolis leaders, along with Governor Tim Walls are pushing for the Minnesota Bureau of Criminal Apprehension to be part of a joint investigation with the FBI. While they were originally slated to work together, the BCA accused the federal agency of cutting off their access to case materials such as scene evidence and interviews, forcing them to withdraw from the probe. The case will now be investigated exclusively by the FBI. And Andy, correct me if I'm wrong, usually the FBI partners with local law enforcement to conduct investigations like this. I mean, they did so in the investigation of the school shooting that killed Charlie Kirk. They did so for the attempted assassination of Donald Trump. They did so in the murder of George Floyd in 2020, which happened, by the way, just eight blocks from this shooting that happened last week. But this time the FBI is icing out local investigators. How difficult is that going to make it for BCA to conduct their investigation? I mean, they've completely withdrawn.

Andy McCabe (5:11)

Yeah, it's not just difficult, it's almost impossible. And I should start this by saying that this is something that the FBI in the modern era, so the post Hoover era would never even consider doing under any circumstances. And as you've cited those recent examples, the FBI has a long history of cooperating with local police on these sorts of investigations. I should also point out that the state has a distinctive and independent interest to investigate a killing that takes place within state jurisdiction. So completely independent of the federal government, the state has a compelling state interest to run an investigation here and find out if somebody might be guilty of homicide. But as a practical matter, they can't do that if they don't have access to the evidence. The most crucial piece of that evidence being of course, interviews and post incident statements made by the people involved. So the people who may have fired their weapons or the other agents who were there on the scene and didn't fire their weapons but may have been involved in it. And of course like witnesses who were there and saw what happened. So without access to that sort of evidence, without access to those post incident statements, things like ballistics, all that sort of stuff, it's going to be basically impossible for the state to conduct a thorough and complete investigation.

Allison Gill (6:40)

Yeah, and some updated news like from the Associated Press, for example, Hennepin County Attorney Mary Moriarty said that federal investigators immediately took possession of the vehicle, Good's vehicle, after she was fatally shot. And since then, Minnesota investigators have had no access to the vehicle or any forensic evaluations conducted on the vehicle by the FBI. She emphasized she wasn't criticizing the FBI's ability to investigate, but was concerned her office wouldn't be able to follow proper protocols for fatal shootings that happened in their jurisdiction. There's also crucial evidence, including bullet shell casings, witness interviews and videos. And that sort of answers a, a part of a question that I was going to ask you about. When the FBI comes on the scene, generally they collect all the physical evidence. I was wondering, are you saying that it's pretty much impossible for the local authorities to do this without the FBI because the FBI has collected all the physical evidence?

Andy McCabe (7:35)

Well, it's basically impossible for them to run their own investigation without access to that stuff. It's not uncommon for the FBI to maybe take the lead on the evidence collection, especially if it's a smaller police department, which may not be the case here, but in other cases it is. But that's always done after there's an agreement by both sides, both the FBI and the relevant department to work together. And so if you know that you're going to get access to whatever, everything the FBI collects, then you'd be okay with them actually collecting it, maintaining custody, having their experts evaluate it, things like that. So the FBI scooping it all up is not new, but typically they only do that after there's been an explicit agreement that they will share the results of that evidence collection.

Allison Gill (8:22)

Yeah, and they did have an explicit agreement to do so. But then The Trump appointed U.S. attorney in Minnesota stepped in and said that that was going, that evidence sharing was not going to happen. And apart from that, for a state to prosecute a federal officer, there's some legal Evaluation that has to be done there. And the Hennepin County DA has done that and says that they do have jurisdiction to investigate a federal officer in this particular instance, this. This federal officer, and has now asked for more evidence from the public. But, you know, a lot of folks are saying you should be able to arrest this guy based on the video evidence alone. But I, I wanted to ask you, don't you generally need the vehicle and the ballistics and the shell casings and the, the physical evidence to, to. To put into evidence in a, in a court case, for example, if you were going to bring somebody to trial or prosecute them, don't you generally need that physical evidence to make a case?

Andy McCabe (9:25)

Absolutely, yeah. I mean, the video is extraordinary. It's graphic. It definitely tells us a lot, but it's not the entire story of what happened there. To present an effective case to a grand jury or later to a trial jury, you would. You really need access to all of this stuff, the ballistics, the physical evidence collected at the scenes I said before, the witness statements, and all that kind of thing. Now, there's a lot of states in the country that actually require in every law enforcement shooting that the facts and details of that shooting be presented to a grand jury. So that was the case in New York City, where I was an. Where I was a street agent, when anytime anyone in our office was involved in a shooting incident, the case would be presented to a grand jury. They're typically not indicted because the prosecutor will go in front of that grand jury and say, this is what happened. This is the agent who, you know, who fired their weapon. They'll call the agent in and examine them under oath, and then they may even recommend to the jury not indicting if it's a pretty clearly authorized, you know, law enforcement action. But nevertheless, there's a process that has to go forward, and you need access to the people and the evidence in order to do that. So this is a really unprecedented and bold and I think, very destructive thing here. Not that this is in any way the most important aspect of this, but there is a relationship that the FBI depends upon with their local partners. And this is the kind of thing that could drive a rift between this police department and the FBI for years and years to come. Could be the kind of thing that causes them to pull all their officers off of FBI task force, things like that. We've seen that, in other words, in other cities. So, yeah, the impact of this is massive on this case, but. But could include other things as well.

Allison Gill (11:18)

And one Last question that I have. If the FBI in any way mishandles the evidence, chain of custody, things like that, can that taint the evidence for the state case as well, if it is eventually shared? You know what I'm getting at here?

Andy McCabe (11:36)

Yeah. So what you would need in that situation, if, if, if the evidence is eventually shared with them and they're able to cooperate, the FBI people, whether they're agents or evidence technicians or what have you, who took custody that evidence or conducted specific examinations on it, things like that would actually appear in the state process. They'd appear in front of the grand jury or in a trial or what have you to testify as to the results of their examinations, that sort of thing. So yeah, you need, you need FBI people supporting that state effort in the same way that you might need state people supporting any federal prosecution that, that could potentially go forward.

Allison Gill (12:19)

Well, like you said, we've all seen these videos. A new piece of video evidence came out today. It was released to a right wing media outlet and it's the cell phone footage that the shooter himself, his name by the way, is Jonathan, was taking when this happened. New York Times has. Oh, and by the way, I don't know if you saw this piece of news, Andy, because I know you were on a plane. But as he's taking that video, he keeps his phone, he, he in his left hand, he has it in his right hand, he puts it in his left hand, draws his pistol, fires the shots, doesn't drop his phone, and then you can hear him say fucking bitch as she slams into the hole down the street. So I, that, and they released that because they thought it was going to be exculpatory because they think that it showed that he was somehow actually hit by this vehicle. But the New York Times analysis of the video that slows it down, show that both of his feet were planted on the side of the vehicle when he fired the first shot. So what, what kind of evidence is it? Is that, I mean, I know that that might sway a jury, but legally speaking is that muttering the phrase under your breath after you shoot somebody, does that come into play in, in evidence at all?

Andy McCabe (13:38)

Well, first of all, that if there's a trial at whatever level, that that statement by the, by the defendant absolutely comes in and although it might not be technically evidence of guilt or, you know, go to the proof of any element of the offense is a horrible thing to put in front of a jury. I mean, it makes the defendant look terrible right in that moment. You know, imagine the difference if, if he's caught on tape saying something like, oh, my God. Oh, my God. What. What just happened? That would support the, you know, an inference on the part of the jury that, oh, my. Maybe he didn't really intend to do this. But to say something like Bill, as she, you know, as she's dying behind the wheel of her car is. Could be interpreted by the jury as being a really callous, you know, intentional statement. Chose a level of malicious intent. Yeah, I have to say, too, looking at that video, I mean, it is just. It's horrific from a law enforcement kind of tactics point of view. Like that guy. What if he thought he was in danger from that vehicle? All he had to do is take one step to the side and get out of the way. Like that doesn't, you know, you. We. I, you know, in the FBI, the. Our rules of engagement and rules about use of force specifically explicitly forbid firing at a vehicle for the purpose of stopping it. The other thing I noticed was when you, if you, if you see any of the photographs of the wind, the windshield of the vehicle, that shot that goes in the windshield, so that would likely be the first shot, is very in the bottom right corner of the windshield, as you look at it, and very close to the driver's side mirror, just a couple of inches in from the side, the. A pillar of the car, the, you know, the piece of metal that goes down alongside of that windshield. If you look at the video, his partner, the guy who had his hands in the car was. His face was right there. So in a. So had he missed that first shot, he could have very easily killed his partner. I mean, he literally fired right into the face, you know, inches away from the face of one of his team members. There's nothing about that, about where he was positioned in what he did that was tactically sound, in my view. In my opinion. It's just. It's just wrong on. On so many levels. And I think even though these use of force cases are very, very hard to convict on, generally because the standard for police use of force is incredibly low, it's basically if the officer with the facts known by him at that moment from his unique individual point of view, believed that he was in danger, you know, in some sort of lethal danger of danger of death or serious bodily injury, then the shooting is justified. And, and that's. That fits to almost every. Every scenario because it has the. The court has to analyze that from the perspective, not from the perspective of, like, a reasonable person, but from the perspective of the officer involved. Even with that Low standard. This is an ugly case. This is a really ugly case. So, yeah, if it was being handled normally, I'd say that this agent could be in a lot of trouble. But the way it's being handled enters a whole new level of mischief into this thing.

Allison Gill (17:23)

Yeah, it seems like an easy case to bring, unless you don't have any physical evidence because the FBI is hoarding it, which, like you said, unprecedented since the Hoover. That's not the way thing. That's not the way you do things. That. And also, if you fear that somebody's going to weaponize a vehicle against you, you don't walk in front of it with your cell phone filming. You just don't approach a vehicle from the. Because he was at the side, at the passenger side and then walked around the front of the vehicle twice. Actually, if you watch the long video, he's looped around that vehicle twice with his cell phone out recording. And that doesn't scream to me. Fear of, you know, imminent danger certainly doesn't comport with anything that the, the government put out. The three statements from, from Trump, Noem and Trisha McLaughlin at DHS, first of all, they contradict each other. And second of all, Kristi Gnomes, especially to call this woman a domestic terrorist and then to say her, her account of the facts, Andy, if you watch the video, is that the agents had gotten stuck in the snow because of the inclement weather in Minnesota, and they were out of their car trying to push their car, free their car from the snow when she drove at them to try to kill them. That's her account of what happened. So we've seen a lot of, from DHS and Trisha McLaughlin, you know, incidents where they claim that people are weaponizing their vehicles against ICE agents. Most of these have been thrown out of court or disproven with video body cam evidence. But with. Without the FBI handing over this evidence to the DA in Hennepin county or to the BCA in Minnesota, I just, I'm, I'm not very hopeful that they will be able to continue a prosecution without that evidence.

Andy McCabe (19:17)

Yeah, I agree. I think there's great, great concerns. I'm deeply concerned about whether or not the state will even have the opportunity to do what they are required to do here. And I think the way that the FBI is handling this so far. So far is it's, it's, it's disgraceful. Yeah. Straight up.

Allison Gill (19:42)

Yeah. All right. Well, I mean, not that you have as much experience as someone like, say, Dan Bongino on these matters. But he's gone now. He has left the FBI back back to his private life. But it is very disappointing to see the FBI refusing to cooperate in this investigation. We'll keep an eye on this story. We've got more news to get to so everybody stick around. We'll be right back. Foreign. Hey everybody, it's AG. If you want a simple 2026 resolution, start with sleep. When your sleep is better, you show up with more energy and handle stress like a functional adult, which makes every other goal easier. This is why I'm reaching for CBD from CB Distillery. Over 90% of CBD customers say CBD helps them sleep better. CB Distillery also offers support for stress, mood and post workout pain and you can shop by benefit to find the right fit. I want to thank CB Distillery sponsoring this episode and they're offering a deal for you. Get 25% off your entire purchase@cbdistillery.com and use promo code UNJUST now. I started using CB Distillery because I wanted something that supported recovery and sleep without making my routine complicated, without making me groggy. Now the first product I fell in love with was the Relief stick after a workout or after a long day. Hunched over the keyboard, I swipe it on tight, calves, sore shoulders and the cooling effect hits right away. It's amazing. I also keep their CBD sleep gummies for nights where I can't sleep. They help me transition into bedtime instead of staying trapped in that half awake state for hours where my mind won't stop rush. We're like racing so I fall asleep more easily. I wake up feeling rested and ready to go. Better sleep also means I handle stress better during the day and it also boosts my immune system during this flu and cold season. Everything from CB Distillery is premium quality third party tested free of artificial dyes and fillers. They have over 2 million happy customers and a 100% money back guarantee so your not taking any risk. So if you want a better support for sleep, stress, mood or post workout pain, CB Distillery makes it easy to choose what fits. So if you're ready to start the year off right, go to cbdistillery.com and use our code unjust for 25% off. That's cbdistillery.com code unjust one last time. Cbdistillery.com specific product availability depends on individual state regulations.

Martin Sheen (21:59)

It's Sunday morning and that wonderfully relaxed feeling of a long lazy day lingers in the air. If you want to make the moment last, may I suggest the perfect solution The Martin Sheen Podcast Join me, your host, Martin Sheen for beautifully crafted 20 minute programs filled with never before heard stories of my life along with personal reflections and poetry that inspires. The Martin Sheen Podcast is the perfect Sunday refresh. A chance to take a deep breath, relax and know that the stress of Monday may be just around the corner, but not here, not now. So make this your weekly moment of calm as we explore faith, hope, love and what it means to be human. And know this, this journey is ever unfolding as I invite you to see what's next with me, Martin Sheen. And thank.

Allison Gill (23:00)

You. All right everybody, welcome back. This week we saw the fifth Trump appointed US Attorney disqualified by a judge because they were unlawfully appointed and we knew this was going to happen. Andy, you and I talked about this guy Sarcone. It's just going to be a matter of time. This is the guy in upstate New York who appointed himself his own deputy so that Trump could elevate him to interim U.S. attorney, circumventing the law. He's also the U.S. attorney criminally investigating the New York Attorney General, Letitia James, not over mortgage fraud, but for her fraud investigation into the Trump Organization, which ended in a $480 million fine that has since been reduced. But he had a bunch of subpoenas out for the New York attorney general investigating her investigation.

Andy McCabe (23:44)

Yeah, that's absolutely right. So let's dive into this one. Jacob Knudsen writes for Democracy Docket. He says a federal judge Thursday ruled that John SARCONE, President Donald Trump's temporary pick as acting U.S. attorney for the Northern District of New York, has been serving unlawfully in his post for months. The decision from U.S. district Judge Lorna Schofield, appointed by former President Barack Obama, makes sarcone the fifth Trump appointed acting U.S. attorney deemed illegitimate by federal courts during the president's second term.

Allison Gill (24:19)

Like many of Trump's other temporary US Attorneys, Sarcon has used his post to target Trump's political enemies. In August, as I said, he attempted to serve subpoenas against New York Attorney General Letitia James's office that were in part retaliation for its successful civil fraud lawsuit against the Trump Organization for fraudulent business practices. Letitia James, one of Trump's foremost adversaries, challenged Sarcon's subpoenas, arguing that they could not be executed because he was serving unlawfully as the acting U.S. attorney when he sought them.

Andy McCabe (24:51)

In her order Thursday, Schofield agreed with the argument from James's office, ruling that Sarcone's service was and is unlawful because it bypassed the statutory requirements that govern who may exercise the powers of a US Attorney. The judge noted that US Attorneys must be nominated by the President and confirmed by the Senate when a vacancy occurs. Federal law allows the president to fill the position, but only for a limited amount of time. If a U.S. attorney is not officially confirmed to fill the vacancy before the end of that time limit, federal law then gives judges in the federal district the authority to appoint a permanent attorney.

Allison Gill (25:32)

Yeah, it's that whole checks and balances, balance of power thing that we talk about so much in the Constitution now. In July, judges in the Northern District of New York refused to extend Sarcon's tenure. However, that same day, the DOJ shifted titles and made personnel changes within the U.S. attorney's office for the Northern District of New York to keep Sarcon in power. Quote, federal law does not permit such a workaround. That's what Judge Schofield wrote. She went on to say, when the executive branch of government skirts restraints put in place by Congress and then uses that power to subject political adversaries to criminal investigations, it acts without lawful authority. So not only did this judge determine that this vacancy, appointment, interim appointment, was unlawful, the judge went to on like to say that when you're. The executive branch skirts restraints from Congress and then subjects adversaries to criminal investigations, like, she goes all out on this one.

Andy McCabe (26:29)

I love that. I mean, that is. That is what's known as a sideswipe. Like, she didn't have to hit that car driving down the street, but she just swung over and tagged it on her way. By declaring the investigation to be politically motivated, essentially, the judge added that a growing body of persuasive authority reinforced her conclusion against Sarcone, noting that several other judges have also rejected the DOJ's attempt to circumvent the confirmation process to keep loyalists atop key U.S. attorney offices. Schofield cited the 3rd Circuit Court of Appeals disqualification of Alina Habba, one of Trump's former lawyers, as temporary U.S. attorney for New Jersey. After the appeals court ruling, Haba resigned.

Allison Gill (27:16)

She resigned from a job that she never had. I just resigned as the prime minister from Australia myself. Andy.

Andy McCabe (27:23)

I'm so sorry to hear that. I. I thought you would have done a great job.

Allison Gill (27:26)

That's okay. It was fun while it lasted. The judge also noted that a federal judge recently ruled that Trump attorney Ben Pam Bondi, general. Attorney General Pam Bondi had violated the constitutional and federal vacancy laws to appoint Lindsay Halligan, who also formerly worked as one of Trump's personal attorneys, as Acting U.S. attorney of the Eastern District of Virginia. Halligan, however, has continued to lay claim to her job, even dropping acting or interim from her title in court filings, though she was never confirmed by the Senate or federal judges in the Eastern District of Virginia.

Andy McCabe (28:00)

Earlier this week, a federal judge ordered Halligan to explain how, in light of her disqualification, her continued claim to the position didn't constitute making a false or misleading statement to the court. In addition to Halligan and Haba, courts have also ruled that Segal Chadha and Bill Aseli were illegally serving as the acting U.S. attorneys for the District of Nevada and the Central District of California, respectively. However, both remain at their posts.

Allison Gill (28:31)

Right. Sarcon also sought to subpoena James's office for its long running case against the National Rifle Association. The subpoenas were part of investigations into whether James's office violated constitutional or legal rights through its civil suits against Trump and the nra. And before he tried to bring the subpoenas against James, Sarcon appeared to violate internal DOJ policies around commenting on ongoing investigations by publicly confirming the department's investigation into James over mortgage fraud allegations.

Andy McCabe (29:02)

Yeah, so let's talk a little bit more about the order issued to Lindsey Halligan. So NBC reports that U.S. district Judge David Novak of Richmond issued a three page order demanding to know why Halligan is still serving in the post. Halligan, who unsuccessfully prosecuted former FBI Director James Comey and New York Attorney General Letitia James, is also referred to as U.S. attorney by the Justice Department in official documents. The judge's order is unusual because he issued it on his own, not at the request of defense attorneys. It came in a case involving a carjacking and attempted bank robbery suspect who was indicted last month.

Allison Gill (29:45)

This is, this blows my mind that he did this sua sponte on his own. Nobody asked him to. And I, I want to let you know, I don't know if NBC is going to get into this, but this is a Trump appointed judge. Now, Judge Novak gave Halligan seven days to respond in writing, quote, explaining the basis for identification of herself as the United States Attorney. Notwithstanding Judge Curry's contrary ruling, she shall also set forth the reasons why this court should not strike Ms. Halligan's identification of herself as U.S. attorney attorney from the indictment in this matter. The judge's order goes on to say that Halligan, quote, shall further explain why her identification does not constitute a false or misleading statement. And that's a big deal because that's something you can be disbarred for or at least referred to the bar for. Novak also alluded to potential disciplinary action and demanded that Hallikin sign her response herself.

Andy McCabe (30:41)

So, in other words, don't slough this off on some assistant. You, you are going to have to make your own statement to the court about this. Novak acknowledged Tuesday that the November ruling regarding Halligan's appointment had been appealed, but said that since the order had not been paused, it remains the, quote, binding precedent of the district and is not subject to being ignored. Halen's response is due this Tuesday, January 13th. I am so glad he ended on that note because this feels like an issue that's constantly blown off by this administration. You might disagree with a judge's ruling, you might disagree on legal grounds, you might disagree with their reasoning. Whatever, it doesn't matter. It's still binding precedent. It's law until you appeal it and it gets overturned. Like, you don't have the right to just ignore the judicial rulings that you don't like or disagree with.

Allison Gill (31:39)

Yeah. And for, again, for the Trump appointed judge to just on his own say, explain to me how this isn't lying and sign your name to it and tell me what you're going to do about this. Because again, it has been appealed, but it's the order that says that you were unlawfully appointed has not been overturned nor has it been stayed. There's nothing that's staying that order. It's binding precedent right now. So. Very interesting. That's due. What did, when did you say? Oh, yeah, January 13th. That's this Tuesday. So we'll keep an eye on this for you. I know a lot of other court watchers are going to keep an eye on this as well, because this, the way that the judge says this, the words that he uses make it feel like he wants to make a referral to the disciplinary bar, you know, the, the disciplinary bar association of, of, of her district, of her state. False and misleading statements in a, in a. You know, that verbiage makes me think that he wants to put an end to this charade, that she shouldn't be there.

Andy McCabe (32:48)

Yeah, I mean, let's hope so, right? You and I have been saying this from the very beginning. The way that Halligan has conducted herself since being thrown into this role. She is on her way to disbarment proceedings. And so this might be the shortest circuit there.

Allison Gill (33:06)

Yeah, we'll see. All right, everybody, we've got more news to get to, but we have to take another quick break. Stick around, we'll be right back.

Martin Sheen (33:17)

It's Sunday morning and that wonderfully relaxed feeling of A long, lazy day lingers in the air. If you want to make the moment last, may I suggest the perfect solution, The Martin Sheen Podcast. Join me, your host, Martin Sheen, for beautifully crafted 20 minute programs filled with never before heard stories of my life, along with personal reflections and poetry that inspires. The Martin Sheen Podcast is the perfect Sunday refresh. A chance to take a deep breath, relax and know that the stress of Monday may be just around the corner, but not here, not now. So make this your weekly moment of calm as we explore faith, hope, love, and what it means to be human. And know this, this journey is ever unfolding as I invite you to see what's next with me, Martin Sheen. And thank you.

Andy McCabe (34:18)

Welcome back. Okay, this past Thursday, Representatives Ro Khanna and Thomas Massie, the leaders of the Epstein Files Transparency act, sent a letter to Judge Paul Engelmeier of the United States District Court for the Southern District of New York requesting the appointment of a special master to compel the Department of Justice to release the full Epstein Files as required under the Epstein Files Transparency Act.

Allison Gill (34:44)

Yeah, another special master. I mean, how many special masters have you and I been through on our various podcasts, my friend? We had a. We had a special master for the classified documents case, but that got shut down by the 11th Circuit. We had a special master for Michael Cohen search. We had a special master for Rudy Giuliani's. We had a special master for Letitia James, who needed to appoint somebody to oversee the, you know, be the financial babysitter basically of the Trump Organization pending the fraud, the outcome of the fraud case. And, and I think in every instance, the special master has been retired Judge Barbara Jones. So it'll be interesting to see if she's tapped here again if the judge decides to do this. So let's read some excerpts from Khanna and Massey's letter to Judge Engelmeier. They say we write jointly as members of the US House of Representatives and as a Meekie curi. In the above caption matter, we respectfully request permission to file this brief as a Meekie curi. Given our unique expertise as the leads of the Epstein Files Transparency act, we're writing to suggest the appointment of a special master and independent monitor to compel the Department of Justice to make mandatory production under the act. As the leads of the Epstein Files Transparency act, we have urgent and grave concerns about the Department of Justice's failure to comply with the act, as well as the Department's violations of this court's order.

Andy McCabe (36:09)

On December 19, 2025, the Department of Justice released only a portion of of the responsive materials. That release, however, did not comply with the statute as written. The Department failed to meet the Act's requirements in multiple respects, including missing the statutory deadline, asserting common law privileges that the act does not permit, and applying extensive redactions that appear inconsistent with the Act's express prohibition on withholding or redacting records to protect politically exposed persons.

Allison Gill (36:43)

Foreign DOJ has acknowledged that despite tens of thousands of manual redactions and quality control checks, information that victims believe should have been redacted was nonetheless posted publicly. DOJ also represented to the Court that it interprets the act to require publication of grand jury and discovery materials unless a statutory basis for withholding applies with victim privacy protected through the appropriate redactions rather than categorical withholding. Consistent with those representations and with the Court's order directing DOJ to certify that victim identifying information has been protected, the act allows narrowly tailored and consistently applied redactions, not the wholesale removal of records after release or assertions of privilege inconsistent with the Act. Whether the Department's actions complied with those limits is a fact specific question that would benefit from a neutral independent review.

Andy McCabe (37:40)

In addition, the DOJ has not complied with Section 3 of the act, which requires the Attorney General, within 15 days of the deadline for release, to submit a report to the House and Senate Judiciary Committees identifying the categories of records released and withheld and summarizing all redactions and their legal basis. To date, no such report has been provided. Without it, there is no authoritative accounting of what records exist, what has been withheld, or why, making effective oversight and judicial review far more difficult. Put simply, the DOJ cannot be trusted with making mandatory disclosures under the Act.

Allison Gill (38:20)

Thus, in our capacity as a miki curi, we suggest, pursuant to its inherent authority and Federal Rule of Civil Procedure 53, this Court appoint a special master and or independent monitor for the purpose of ensuring all the documents and electronically stored information are immediately made public to be in accordance with the Epstein Files Transparency Act. We also suggest the independent monitor be given authority to notify and prepare reports to this Court about the true nature and extent of the document production and if improper redactions or other improper conduct is taking place. We also suggest this Court compel testimony from the person or persons most knowledgeable from the DOJ Southern District of New York office about the production that has been made, the pending productions, and the representations that have previously been made to this Court.

Andy McCabe (39:12)

Absent an independent process as outlined above, we do not believe the DOJ will produce the Records that are required by the actual and what it has represented to this court. We appreciate the court's attention to this letter. We can make ourselves available to the court at a future hearing or participate in a briefing on the need for a special master or independent monitor or any topic this court deems helpful for the full and fair administration of justice.

Allison Gill (39:37)

So, Andy, I like this idea. I think writing to Judge Engelmeier in his capacity as one of the. The judges, one of the courts that had to release grand jury information, one of the three courts that had to release grand jury information, trying to tack this special master monitoring onto the full Department of Justice release pursuant to the Act. It'll be interesting to see if Judge Engelmer believes that he has jurisdiction to have the special master look after that law, as well as what was supposed to be released in his courtroom specifically. I. It'll be interesting to see if he. If he agrees. I didn't. I went through the letter. I didn't see any citations of other similar cases where a special master was appointed by a judge to oversee a law and something that was going on in. In his courtroom. So I'm very interested to see if Engelmeier has jurisdiction to appoint a special master to oversee the release of the Epstein files pursuant to the Act. It's kind of. I think. I think it's an interesting legal question.

Andy McCabe (40:46)

It definitely is. And it's an open question. Right. It's not. It's not an easy one to. To kind of pick from this perspective, but it's clear what Congress is trying to do here. They. The problem with the act is they don't really have a clear venue to enforce the law against the Department. Right. What would Congress normally do if they're concerned that DOJ is not following the law? Any, you know, any given law? Well, typically it'. You would hold hearings, you would demand people come up and testify. And then, you know, maybe if they said things that weren't true, then maybe you could try to refer contempt proceedings. But that's not going anywhere here because the referral would go to doj. So, you know, these guys understand that they don't have a lot of options, so they are trying to put this under the purview of a court to see if the court can actually hold DOJ accountable. Not convinced that this is going to work, because I think the court might see this as like kind of an incursion into what is essentially a political process. But, yeah, we'll have to see how it goes.

Allison Gill (41:49)

Yeah, I think the the idea here is to get a court order that has to be followed. So we'll see what happens.

Andy McCabe (41:55)

That's right.

Allison Gill (41:56)

Keep an eye on it for you.

Andy McCabe (41:56)

That's right.

Allison Gill (41:57)

All right, everybody, we've got a couple more quick stories, plus listener questions. Again, if you have a question you'd like to submit to us, there's a link in the show notes to do that. And we'll be right back. Stick around. All right, everybody, welcome back. Before we get to listener questions, as I said, which we'll do in a moment, we have another couple quick stories for you from Politico. House Judiciary Chair Jim Jordan said in an interview Friday he's going to invite former special counsel Jack Smith to testify in an open hearing in public as soon as this month in what would potentially be a high stakes event for members of both parties and the White House. Although, you know, Andy, while you were gone, I did a clip by clip of some of The, I think 34 most important exchanges in the behind closed doors Jack Smith testimony. And he kind of wiped the floor with everyone. So I'm not sure how this is high stakes for, for Democrats. But, you know, obviously we'll see. Here's a quote. He's coming in. That's what Ohio Republicans said of Jack Smith, who led the federal criminal cases against President Donald Trump.

Andy McCabe (43:10)

Smith sat for over 8 hours with breaks before Judiciary Committee members and staff investigators last month behind closed doors. While his legal team has repeatedly requested a public forum for their client to argue his case. Jordan released a transcript at a video record on New Year's Eve, always a big news night in this country, and said Friday he now wants Smith to stand before the public and defend his claims of misconduct against the president.

Allison Gill (43:38)

Yeah. Here's a quote. One of the key takeaways in the transcript is we said, did you have any evidence that President Trump was responsible for the violence that took place at the Capitol? He had no evidence of that whatsoever. That's what Jordan said of the committee's December interview with Smith behind closed doors. But I would just kind of want to reiterate here. Donald Trump wasn't charged with inciting an insurrection or the violence at the Capitol. So why would he have evidence developed to that to that end? Now, obviously, you and I all saw it. He did incite the violence at the Capitol. But Jim Jordan says he's eager for Jack Smith to answer that question and others specifically. The thing I noticed, Andy, when I covered this here going solo last week on Unjustified, was that the number one concern, the Number one thing on the forefront of Republicans minds wasn't the safety of the American people. It wasn't the officers at the, at the Capitol on January 6th. It wasn't even the pardoned criminals from January 6th. Their number one concern was whether or not it was legal for Jack Smith to get their phone records, which it clearly was.

Andy McCabe (44:50)

Yeah. Because it's all about the phone records. Right. It doesn't matter about what actually happened. Who was the architect behind the assault on the Capitol? No, no, it's all about the phone records. Who looked at our phone records? Who's going to hold the bag. Yeah. So I'm not surprised by his focus at all. And can I also add to this, I mean, mad props to you for doing that massive episode of going through all of Jack Smith's testimony. I mean, I feel terrible. I was gallivanting around the globe and not able to help. But seriously, well done. That's a, that's a hell of a piece of work.

Allison Gill (45:29)

Thank you. I appreciate that. Talking again about, you know, the phone records, my. I think one of my favorite clips, and it was included in last week's episode, is one of Jim Jordan staffers is like, who's going to be held responsible? Who do we hold criminally liable for if it was illegal to subpoena, you know, the phone records of members of Congress? And Jack Smith was like, you would hold Trump responsible. He chose those Republican senators, not me. If he had called Democrats, I would have subpoenaed Democrats phone records and just sort of dropped the hammer on him in his very. In his own sort of succinct, stoic, kind, understated manner. But he dropped the hammer on it.

Andy McCabe (46:09)

Yeah. I can't wait to see this thing. Okay. Smith defended his work last month to House Judiciary members and staff, but his testimony was hamstrung in part by a federal court order order that has kept the second volume of his report surrounding the classified documents case under seal. He has maintained that he's interested in sharing the results of this investigation, but the Justice Department has interpreted that the order precludes him from discussing details with Congress. Now, these potential restrictions on his testimony back in December will likely be the same for any public hearing in the near future.

Allison Gill (46:45)

Yeah, unless for some reason that that report comes out. But I don't think there's time to even get that to the supreme court from the 11th circuit if they lifted their abeyance on a mandamus order for, for Cannon anyway. And we haven't heard about that. It was supposed to expire a week ago, but we still haven't heard about that. Cannon has said it expires February 24th. I think what was interesting, an interesting part of the testimony, Andy, and I was just really curious about your thoughts on it. When he was asked, when Jack Smith was asked if he got a copy of Volume two, because, you know, he asked for all of his files and he got all of his files. Jack Smith said, yeah, I think that the DOJ sent me a copy of Volume two, by the way, which would violate Judge Cannon's order. But the sent me a copy of volume 2, but I didn't open it and I didn't look at it because I don't want to go anywhere near violating the injunction that the, that prevents it from coming out. So he actually was sent it and didn't even open it.

Andy McCabe (47:42)

Yeah, dude is very careful and for good reason. They would love to be able to trip him up on some sort of technical foul and, and then open a whole can of worms of an investigation.

Allison Gill (47:51)

So good for him for, for sure. So. Well, I look forward to that. I, I'm actually surprised Jim Jordan's letting this happen because, you know, I was like, no wonder he wanted this behind closed doors. It was pretty devastating to, to, to, to the Republicans conspiracy theories that he just debunked one after the other.

Andy McCabe (48:10)

Yeah, I'm stunned they're doing this. This is, there's no upside for them here. I was surprised they released the transcripts as quickly as they did. And this is a real shocker. So. But definitely worth tuning into.

Allison Gill (48:21)

Yeah, we'll be keeping an eye on it for you. One other quick story. The alleged pipe bomber Brian Cole has pled not guilty in federal court after it took U.S. attorney Jeanine Pirro nearly a month to get a federal grand jury to return their two count indictment, having first gone to the Superior Court to get an indictment from a local grand jury. However, in a footnote in a pleading by the defense in federal court, alleged pipe bomber Brian Cole's attorney writes, quote, even if the release issue were moot, and it's not, the court nonetheless will have to determine the validity of the purported indictment obtained in the D.C. superior Court at some point in this litigation. This is true because the January 6 indictment contains at least one charge that has a five year statute of limitations and that period expired before the indictment was obtained from the federal grand jury. We will keep you posted on this case as it moves forward. So the Superior Court got their indictment in under the wire, but the federal grand jury, it appears One of the counts had their statute of limitations expire. So now we've got potentially wonky. Half a superior court indictment, half a federal court indictment. The superior court indictment came in in time. The federal court indictment didn't. This is what happens when you put Fox News anchors in charge of U.S. attorney's offices.

Andy McCabe (49:45)

Yeah, exactly. How many times did you hear cases where multiple U.S. attorney's offices had massive problems getting anything through a grand jury before this administration took over?

Allison Gill (49:57)

Never. And in fact, going back to the Jack Smith testimony, Jasmine Crockett just sort of sidled in and, and said, hey, have you ever had to go back to a grand jury three times because you couldn't get an indictment? And Jack Smith just looked at her and goes, never.

Andy McCabe (50:11)

No. No.

Allison Gill (50:15)

And it wasn't just like a no, like a straight laced answer. He looked at her, was like, never. It was pretty amazing. That was a little, you know, tip of the hat to the, the triple time trying to indict Letitia James.

Andy McCabe (50:32)

That's right, the distinguished Ms. Halligan man.

Allison Gill (50:38)

Anyway, who's not even lawfully appointed but keeps calling herself the attorney U.S. attorney. All right, time for a listener question. I think we have time for one. We did a full Q A bonus while you were out, Andy. We were going to run that on Sunday, but then the Jack Smith testimony happened. So we actually had all sorts of extra content for people who like to listen to Unjustified.

Andy McCabe (50:59)

Nice.

Allison Gill (51:01)

So I think we've got time for one question. Keep sending your questions in because like, you know, like we say we're going to do on a more frequent basis, those full Q and A episodes. So what do we have this week? Weekend.

Andy McCabe (51:13)

Sure. So this is a, I thought this is a really interesting one. It's something that we haven't really discussed much recently, so I, I thought I'd throw it in there. This one, I do not have a identity for the person for whoever sent it in, so whoever sent this one in, thank you very much. They say your podcast is like a lifeline to all the political uncertainty. Both of you are doing a service to our democracy. The question is, is it possible for Trump to stop midterm elections by possibly getting enough votes in Congress to change the election date or to stall them by force somehow? Now that he is starting a war, it seems certain that the midterms, if overwhelmingly voted to put power in the Dems hands, could unravel his presidency to impeach and release files and expose everything. So that's a good question. I think the overall premise there that the administration and the president going to face some serious headwinds if Congress flips over in the midterms. As for using Congress to change the date, I don't see that happening. Because first of all, let's remember it's the states that run these elections. And I don't know that Congress can even legislate that. And even if they could, the Republicans majority in the House has just shrunk by another couple of votes. And I find it, you know, now they're having, at least in the last few days, there's been a couple of many more departures of Republicans voting with Democrats on these various asundry bills that are making their way through the House. So I think they'd have a really hard time getting it. They're going to have a really hard time getting anything done. I don't see them getting this done. I don't know. How do you see it?

Allison Gill (53:06)

Yeah. And as far as these departures you're talking about, 17 Republicans voted with all Democrats to extend Affordable Care act subsidies for three years in the House. Five Republicans in the Senate voted with all Democrats to. On a war powers resolution to prevent more attacks, military attacks on Venezuela. There have been a lot of defections happening. And like you said, the, the margin in the House is razor thin. But you would also need, if you, and I don't know that you could even pass a law to change the election date. But if they tried, this isn't something that could go through with budget Reconciliation. You'd need 60 votes in the Senate, and you're just not going to.

Andy McCabe (53:43)

That's right. So.

Allison Gill (53:45)

And again, if that law were somehow passed, I'm sure that it would be struck down. So, yeah, I think the important thing to remember here is, like you said, Andy, elections are administered by the states, not by the federal government. And even the most conservative courts in the country have agreed on this point. I remember Judge Pryor, the chief judge of the 11th Circuit, when Mark Meadows was trying to remove his Georgia Fulton county case to federal court, he said, no, first of all, it's only for current officers, the United States. And second of all, that is not your job. Elections are not your job. It's not your job. It's not the president's job. So you can't say, as the chief of staff to the president, it's your job because it's not his job either. No, no, no. That's ridiculous. So, yeah, I, I know that he's gonna. I know that he's gonna do everything he can to disrupt the midterm elections, absolutely everything he can to do so. And I can't know what he's got up his sleeve. You know, I mean, on our Daily Beans podcast that aired on January 5, 2021, Dana said, I don't know what he's up to, but how many more impeachable things can he do between now and January 20th? And we saw what happened the next day.

Andy McCabe (55:01)

Yeah.

Allison Gill (55:02)

So, you know, it's very hard to, to know. But I think, you know, some of the, at least the legal avenues we can guess. And I'm glad we've got folks like Mark Elias and Democracy docket and huge teams of lawyers that are working on it currently right now preventing the Trump administration from getting voter roll information in certain states for, for example. So we'll keep litigating it and see what happens. But I want everybody to remember we just pulled off 52,000 elections in November a month and a half ago. And we, we shellacked the Republicans in those elections. So I am, I have more confidence in the midterms than maybe I did in November of 2024 because they are at our back door right now. We're starting the primaries here in a couple months, so we'll obviously keep an eye on it for you. But yeah, as far as passing the law, I don't think they have the votes in Congress and I don't think Congress can make a federal law instructing states what to do in their elections.

Andy McCabe (56:05)

Yeah, totally agree. And whether or not he could do it by force, that would also be super tough because you're talking about you have to make a pretty significant application of force in every state. So again, wouldn't rule anything out at this point. But I think the elections, my strong sense is they go forward on schedule. What the result is, nobody knows. But I share your positive outlook on it based on what we saw in the results last November. So, yeah, we'll see. We'll be talking about it a lot as we roll closer to that date.

Allison Gill (56:41)

Yeah. And of course he's going to target certain areas of certain cities. If he sends troops and, or National Guard and, or ICE to the polls or poll watchers, it's going to target very specific groups of people. Yeah, that, that they've been that, you know, we saw that happen in 2016-2018-2020-2022, 2024, like just targeting. Remember Jacob Wool and Berkman getting arrested for making calls in certain areas of Ohio and Michigan, which was also, by the way to Title 18, United States Code § 241 violation of rights, which is one of the charges that Jack Smith brought against Donald Trump. So looking forward to the Jack Smith public testimony. We'll talk about it here. Looking forward to more of your questions. Click on the link in the show notes and send them in. And I'm glad you're back, Andy, and I hope you had a wonderful time on.

Andy McCabe (57:39)

Vacay. It is good to be back and a lot of stuff coming down the pike, as you just mentioned. So be looking forward to getting through all that with you in the next couple.

Allison Gill (57:49)

Weeks. All right, everybody, we'll see you next time on Unjustified. I'm Alison.

Andy McCabe (57:52)

Gill. And I'm Andy.

Allison Gill (57:54)

McCabe. 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.