C (2:56)

Grand jury rejections are extraordinarily unusual, but have happened repeatedly in recent months in Washington, as citizens who have heard the government's evidence have come away underwhelmed in a number of cases, prosecutors could try again to secure an indictment. The FBI in November began contacting the lawmakers to schedule interviews, outreach that came against the backdrop of broader Justice Department efforts to punish political opponents of the president. President Donald Trump and his aides labeled the lawmakers videos as seditious. And Trump said on his social media account that the offense was, quote, punishable by death.

B (3:35)

All right, okay. Although this, this week, though, I think it was Rep. Ilhan Omar Andy who had mentioned that in Somalia, where she is from, they execute pedophiles. To which the RNC responded, she wants to execute President Trump. Like she said pedophiles. You said Trump. That was like when that Ford factory worker was like, pedophile. And he, and he was like, hey, f know, like, oh, like, I don't.

C (4:12)

Why didn't he just assume the dude was yelling at some other actual pedophile?

B (4:17)

Like, I don't answer to pedophile.

C (4:19)

But apparently, if the shoe fits, Allison.

B (4:22)

I'm just saying, if the shoe fits. Now, besides Slotkin and Kelly, Alyssa Slotkin and Mark Kelly, the other Democrats who appeared in the video are Rep. Jason Crow of Colorado, Christy Houlahan of Pennsylvania, Maggie Goodlander of New Hampshire, and Cristaluzio, Pennsylvania. In November, the Pentagon opened an investigation into Mark Kelly, citing a federal law that allows retired service members to be recalled to active duty on orders of the defense secretary for possible court martial or other punishment. Now, he abandoned that court martial fever dream, but instead censured Kelly for participating in the video and tried to retroactively demote Kelly from his retired rank of captain.

C (5:06)

And Ryan Reilly has some additional information about this grand jury. He says none of the D.C. grand jurors who heard the Trump administration's pitch on why they should indict Democratic lawmakers over a video urging members of the military and intelligence communities to uphold their oaths, believed the Justice Department had met the low threshold of probable cause. Two sources familiar with the matter told NBC News. Okay, that's incredible that they had two sources who were aware of the actual vote of the grand jurors and shared that with the media. And the vote was zero to whatever. Whatever being something between 16 and 23, which is 16 is the least you can have and 23 is the most.

B (5:56)

Okay.

C (5:56)

He goes on to say it's exceedingly rare for a federal grand jury to reject prosecutors attempts to secure an indictment since the process is stacked in the Government's favorite federal grand juries need a minimum of 16 members to have a quorum, and they max out at 23 members. Just 12 grand jurors need to agree that the government had probable cause to indict a threshold much lower than the unanimous beyond a reasonable doubt standard that a petit jury needs to convict. And I should add to that, Allison, not only do you need 12 grand jurors in a trial pettit jury to find guilt beyond a reasonable doubt, but they all have. It has to be unanimous.

B (6:36)

Right.

C (6:36)

So in a grand jury, you could have as many as 23 grand jurors. You only need 12 to get you over the hook.

B (6:42)

Yeah. And the government attorneys assigned to this case. So zero. Zero voted for this. And that's. Usually you get at least a couple.

C (6:53)

Yeah.

B (6:54)

Even if you don't, 12. But to be completely shut out like that. But more. More on this. The government attorneys assigned to the case are political appointees, not career judges, Justice Department prosecutors. One is named Carlton Davis and the other is Stephen Vandervelden. And they're both listed as Special counsel at the U.S. attorney's office for D.C. they work in the front office alongside Pirro and her principal assistant U.S. attorney, special counsels for Policy and Legislative affairs and Director of External Affairs. Now, vander Velden spent 34 years as a local prosecutor in Westchester County, New York, working under Jeanine Pirro during her time as a DA in the 90s and 2000s. Most recently, he works as a dance photographer. Oh, wow. Now, Davis, Davis, Carlton Carlton Davis.

C (7:43)

Also totally irrelevant to what he's doing.

B (7:45)

Now, but okay, living his dream. Whatever you want to do there, buddy. Carlton Davis worked as a Republican staffer on several committees, including the House Select Committee on Benghazi. He worked under. You ready? Rep. Darrell Issa, former Rep. Trey Gowdy, former Rep. Doug Collins, former Rep. Jim Jordan, and former. Current Rep. Sorry, Jim Jordan. I wish he was former and current Rep. Jamie Comer. So he's worked for those people as staffers. So these are political appointees.

C (8:16)

Him and the county prosecutor, who's now a photographer. All right, that sounds like a. Like a really high speed federal prosecutorial team. So according to NBC, Preet Bahara, who's an attorney for Michigan Democratic Senator Alyssa Slotkin, is urging the Justice Department to shut down the investigation. Quote, the grand jury has spoken loudly, clearly and unanimously. Bahara, a former federal prosecutor, wrote in the letter, citing an NBC News report that zero grand jurors thought that the Justice Department had reached the low probable cause threshold needed to indict Bara went on to say, quote, indeed, continuing to pursue this matter would violate clear ethical duties and Justice Department policy.

B (9:07)

Yeah, and I think the policy he's referring to is in the federal Rules of Criminal procedure that say even though you only need probable cause to get in a grand jury to return an indictment, to return a true bill, you shouldn't go to a grand jury. Per the rules, you aren't even supposed to go to the federal grand jury unless you're sure you can obtain a conviction with a unanimous Pettit jury beyond a reasonable doubt and maintain that conviction on appeal. So I think those are the rules he's referring to. But in addition to all of that, Andy, CBS reports a federal judge on Thursday blocked the Pentagon from downgrading the military retirement rank and pay of Mark Kelly of Arizona, finding that the government had, quote, trampled on Senator Kelly's First Amendment freedoms. U.S. district Judge Richard Leon's order prohibits the Defense Department and the Trump administration from taking any adverse action against Kelly to reduce his retirement rank and pay. And here's a quote from Judge Leon. This court has all it needs to conclude that defendants have trampled on Senator Kelly's First Amendment freedoms and threatened the constitutional liberties of millions of military retirees. After all, as Bob Dylan famously said, you don't need a weatherman to know which way the wind blows.

A (10:21)

Wow.

C (10:22)

Wow. I mean, that's, that's legendary.

B (10:30)

And he had a footnote, too. He put a little footnote and the footnote was like, Bob Dylan, Subterranean Homesick Blues, Erisa 1965. He footnoted it.

C (10:40)

Oh, my God. Judge Richard Leon for President. This guy just leveled up. Holy cow. He's going with the Dylan quotes. Of course they're going to appeal this. And when they lose there, of course they'll file for assert in the Supreme Court. It's just ridiculous. I want to know, like, Kelly now has a judge who found conclusively and unambiguously that the Department of Justice violated his constitutional rights. Why not now turn around and file a civil suit against those people? This has got to get you over the hurdle of a Bivens suit, right? I'm no civil lawyer. We all know that. But even I know, you know, the standard to basically pierce the qualified immunity that federal employees have is a constitutional violation. Violation of constitutional rights. So let's go. Let's go, Senator Kelly, let's go. Let's get it on.

B (11:42)

And I hope that future law professors will teach the subterranean homesick blues doctrine. That was so eloquently pointed out in this ruling.

C (11:52)

I mean, if they do, law students all over the country will be like waking up in class going, oh, my God, did he just say Bob Dylan?

B (12:00)

Yeah. What?

C (12:01)

That's awesome.

B (12:01)

Zero. Zero voted in. Those two anonymous sources I assume are grand jurors, but we don't, we don't know.

C (12:08)

We don't know.

B (12:09)

I don't think it was. I don't think it was Vander Velden and, you know, Carlton. So we'll see what ends up.

C (12:15)

I don't imagine either of those guys came back to the office and we go, we got zero. How's that even get out?

B (12:24)

Yeah, like we like going nil in spades, right? Like.

C (12:27)

Yeah, yeah, exactly.

B (12:28)

You don't get anything for. For zero, right? Unfortunately, no points for you. You're awarded no points. And may God have mercy on your soul.

C (12:35)

There you go.

B (12:36)

All right, thank you all. We have to take a very quick break. We have more news to get to today on Unjustified. But like I said, we're going to do it on the other side of this. Quick break. Stick around. We'll be right back.

C (12:46)

Foreign.

B (12:51)

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A (14:27)

I'm Brian Caram and I've spent decades covering politics. Now I'm taking you behind the scenes, one interview at a time. Join us as each week Brian confronts the issues that matter, posing the questions you wish you could ask. No filter, no agenda, just the truth. We're not here for sound bites. We're here for substance. Join me, Brian Caram Every week as we cut through the noise and get straight to it. This is Just Ask the Question for curiosity will lead us to the facts. Subscribe now on your favorite podcast platform and remember, when you want answers, all you have to do is just ask the question.

B (15:15)

Hey everybody, welcome back. All right, next up from the post, federal Judges in Albany, New York, appointed a new U.S. attorney on Wednesday, exercising a rarely invoked legal authority to appoint top prosecutors in regions without a Senate confirmed nominee. It's rarely invoked because they rarely have to do this, because usually the president will put forward somebody who can get enough votes to be confirmed in the Senate. Their choice for U.S. attorney lasted about five hours. Donald T. Kinsella, 79 year old former prosecutor, registered Republican, was summarily fired via an email from the White House later that evening. Yikes.

C (15:55)

The move underscored a growing point of tension between the Trump administration and courts in parts of the country where the president's controversial picks for U.S. attorney have been unable to win Senate support. Kinsella's swift termination also sent a signal to judges in several other federal court districts, including the Eastern District of Virginia, who have recently announced plans to make similar replacements of Trump installed prosecutors whose appointments have been determined invalid by the courts. Quote, Judges don't pick U.S. attorneys. OTUS does. Deputy Attorney General Todd Blanche said in a social media post late Wednesday, quote, see Article 2 of our Constitution. You are fired. Donald Kinsella. Wow, that was so mature. Like ever raising the, you know, the gravitas and the respectability of the position of deputy attorney general. He's got to get on social media and throw some snarky barb at someone he just fired. I mean, whatever.

B (17:01)

Yeah, well, next time I can't get a good seat at the restaurant I want to go to, I'm going to say Article 2 of the Constitution says otherwise. Now, when administration officials similarly fired a new U.S. attorney whom federal judges in New Jersey, appointed in July to replace Alina Haba, Trump's former personal lawyer and pick for the position there. There was little formal response from the courts. So this has happened before and the courts really didn't do anything. Typically, US Attorneys who wield broad prosecutorial discretion to pursue civil and criminal matters in their districts are nominated by the president and confirmed or rejected by the Senate. But federal law empowers judges to name acting US Attorneys when there is no lawfully serving appointee or Senate confirmed presidential pick serving in the role.

C (17:46)

Before his appointment Wednesday, Kinsella had most recently worked as a senior counsel to Albany based law firm Whiteman, Osterman and Hanna. He had served a previous stint in the U.S. attorney's office in Albany from 1989 to 2002. The judges named him to lead the office as a replacement for John A. Sarcone iii, a Trump loyalist whom the Justice Department appointed to serve in the position on an interim basis in March. Before his appointment, Sarcone had never worked as a prosecutor and most recently had served as a regional administrator for the General Services Administration.

B (18:26)

Wow. All right. Yeah, that's the guy who appointed himself his own deputy so that he could be moved up. Yeah. On an interim.

C (18:33)

Of course, he thought that was a good idea. I mean, you know that you picked the guy who has no experience, and then in within five hours, you fire the guy who had how many years? I mean, yeah, 13 years of prosecuting in that office. Okay.

B (18:50)

Yeah. Now, his tenure as interim U.S. attorney was marked by controversies. This is Sarcone. Including an incident in June in which he announced that a knife wielding undocumented immigrant from El Salvador had tried to kill him outside an Albany hotel. Surveillance footage later showed the man did not come close to Sarcone with his weapon, and charges brought by a local prosecutor were downgraded from attempted murder to a misdemeanor. Sarcone had also launched an investigation over the summer into New York Attorney General Letitia James, probing whether her office had violated Trump's civil rights when it secured a multimillion dollar fraud judgment against him and his real estate empire in 2024.

C (19:28)

I wonder how that investigation's going. As a part of a legal challenge from James, a federal judge ruled in January that Sarcone had been serving unlawfully in his position for months, well beyond the 120 day limit federal law places on an interim U.S. attorney pick. But like other interim U.S. attorney picks by Trump who have faced similar disqualification rulings in Los Angeles, Nevada, New Mexico, and Alexandria, Virginia, Sarcon Refused to immediately vacate the job. He continues leading the office.

B (20:06)

He's sitting in his office at a desk with one of those little play school steering wheels like, I'm in charge of this office now. Until recently, judges in districts like Sarcons have been reticent to exercise their authority to appoint prosecutors counter to the Trump administration's wishes. Last month, though, the chief federal judge in the Eastern District of Virginia announced that the courts would be accepting applications for a U.S. attorney to replace Lindsay Halligan, another former Trump lawyer named interim U.S. attorney, only to be disqualified by the courts. She left her post in January. So this firing, you're fired by the dag, right? The Deputy Attorney General, Todd Blanch, is a signal to the judges in the Eastern District of Virginia trying to replace her. The judges in Nevada who might be trying to replace Segal Chatta, who was the person that was deemed disqualified by the courts there, that Trump had installed as interim U.S. attorney. So this is a shot across the bow. And it's just, I think, you know, it's one of the, it's one of these situations where again, he's just seeing what he can get away with. It's the, what are you going to do about it? Legal theory, because he's faced no consequences for pretty much anything.

C (21:23)

Well, I have a suggestion for the judges up there in the Northern District of New York, or whatever it's called. I think they should just stop, stop taking matters. I don't think they should accept any new cases on their dockets that are sent to them by a US Attorney's office that has no US Attorney, a US Attorney's office who has, where the leader has already been declared to be unlawfully serving. They should just refuse to docket any new cases, wrap up the old ones that came in under, you know, maybe Sarcone when he actually was there lawfully, or anyone before him. But don't take any new ones and just see now let's see what happens. Let's see what DOJ does then. You can't get a case prosecuted in, in New York, in northern New York.

B (22:11)

Yeah, that judge, Judge did that sort of with Lindsey Halligan, like, I'm not taking any more of you. Stop signing things. And if you continue to sign things, oh, and I also show cause. I, I'm, I'm requiring you to show cause why you're not lying to me from these other indictments that you signed as U.S. attorney since you're not U.S. attorney after Judge Curry disqualified you, and I will hold you in contempt and so she finally left. Right.

C (22:34)

So what are they going to do? Impeach all those judges? That'll never happen. Can't happen. And Sarcone, this guy reminds me of. Do you remember Morton Downey Jr. Yeah, that crazy talk show host who, like, went in a bathroom somewhere, a public bathroom, and wrote like, anti Semitic words on his face and came out and claimed he's been beat up by skinheads or something. It was like the end of his career. I'm like, that's what this guy did. The homeless guy tried to kill me, actually. No, no, he did. No, he didn't at all. You made it up pretty much.

B (23:08)

How'd you know he was from El Salvador? Did he say, I am an illegal immigrant from El Salvador. On guard. Like, what happened?

C (23:17)

Defending the honor of El Salvadorans everywhere. I shall vanquish thee. Oh, my God.

B (23:27)

Well, I just can't believe he's still sitting in there like, I'm the real U.S. attorney. You can't make me leave.

C (23:33)

No, no, no. Yeah. I mean, but is really. Is anyone going in there and, like, asking him questions? They're all probably like, just don't go near the boss's office. I don't even know if he is the boss anymore, but whoever he is, he's mad in there and it's. You can't. He can't do anything anyway.

B (23:45)

Yeah, we just let him think he's in charge. It's fine.

C (23:48)

Exactly.

B (23:49)

All right. Yeah, I think that's what we should do with Donald Trump. We should Truman show Donald Trump. Put him. Make a little Oval office. Put him in there. Yeah, have actors call him like their.

C (23:57)

World leaders and keep sending in Diet Cokes.

B (24:00)

Doing a thing. Yeah, yeah, that's right. You're the president. Okie doke.

C (24:05)

Good job.

B (24:08)

We've 25th him and he's hit him.

C (24:11)

With one of Homer Simpson's rules of life. Good idea, boss.

B (24:18)

One can dream. All right, we've got more news to get to. We've got a story coming up from the New York Times about. Do you remember when Joe Biden commuted the sentences of the death row inmates, about 20 of them, and to life sentences, and Donald Trump wanted to move them all to ADX Supermax. Well, a judge is saying no, but the judge also acknowledges it's a long shot that he's saying no. So we'll talk about that after this break. Stick around.

A (24:50)

I'm Brian Caram, and I've spent decades covering politics. Now I'm taking you behind the scenes one interview at a time. Join us as each week Brian confronts the issues that matter, posing the questions you wish you could ask. No filter, no agenda, just the truth. We're not here for sound bites. We're here for substance. Join me, Brian Caram, every week as we cut through the noise and get straight to it. This is Just Ask the Question where curiosity will lead us to the facts. Subscribe now on your favorite podcast platform and remember, when you want answers, all you have to do is just ask the question.

C (25:39)

Welcome back. Okay, our next story comes from the New York Times. A federal judge on Wednesday temporarily barred the Trump administration from transferring 20 former death row inmates who were granted clemency by former President Joseph R. Biden, Jr. To the country's most restrictive supermax prison facility in Colorado. The ruling halted an effort by the Trump administration to follow through on promises to make the conditions of the men's incarceration as punishing as possible. And in response to the show of leniency by Mr. Biden, it also set aside for now larger questions about the Trump administration's authority to insert itself into procedures set by the Bureau of Prisons to move specific prisoners within the system at will.

B (26:26)

This is Judge Timothy R. Kelly, who was nominated by Mr. Trump. He wrote that despite the heinous nature of the crimes the men were convicted of, they appeared likely to succeed in showing that they were denied due process, quote, that is so because it is likely their redesignations were determined before their process even began and that despite their hearings and appeals, they had no meaningful opportunity to challenge them. He went on to say, but the Constitution requires that whenever the government seeks to deprive a person of liberty or property interest, that the due process clause protects whether that person is a notorious prisoner or a law abiding citizen. The process it provides cannot be a sham. So basically, you made this decision. There was no process it due process in your decision, and it's a sham. And so he has issued a preliminary injunction stopping this.

C (27:21)

I like his calling out the fact that this applies equally to whatever litigant or defendant is making the claim. Like it doesn't matter if you're a good guy likely to win or a bad person who's done regretful things. The whole point here is the process has to be the same for everyone. It has to be legitimate, genuine, meaningful and equal. Right. Not just for one process for people who the administration likes and a different one for people it doesn't.

B (27:52)

All right.

C (27:52)

Before the decision on Wednesday, Judge Kelly had declined in May to preemptively halt any transfer to the United States Penitentiary Administrative Maximum Facility in Florence, Colorado, also known as ADX and quote, the Alcatraz of the Rockies. At the time, he ruled that the prisoners had not exhausted more routine options for appealing their transfers under the Bureau of Prison Standard Procedures. But while the Trump administration previously committed to not moving any of the men until October 31st because of delays in processing, several of the men involved in the case said that they had failed to exhaust their appeals before the date that the government had set. On October 28, Judge Kelly had ordered the government to provide the court with 48 hours written notice before attempting to move any of the men, preserving their chance to lodge an emergency challenge after the deadline had passed.

B (28:49)

Yep. And that was October 28th. And then on February 4th, the Trump administration filed a notice in the lawsuit saying that it's going to go ahead and transfer almost all of the men who received commutations no sooner than 10 days from the date of this filing. Less than a month before leaving office, Biden commuted the sentences of 37 men who had been convicted of murder and sentenced to death, taking up the calls from human rights activists and nearly clearing death row. Biden left office with just three federal inmates left facing execution, making an exception for those whose cases involved terrorism and hate motivated mass murder. On Christmas Day in 2024, Trump protested that act on social media, telling the men to go to hell. The day he returned to office, he promptly signed an executive order directing the Attorney General to categorically seek the death penalty, regardless of other factors in a number of cases, including any capital crime committed by an undocumented migrant.

C (29:48)

The executive order also directed the Attorney General to see to it that the 37 men granted clemency be imprisoned in conditions consistent with the monstrosity of their crimes and the threats they posed. The lawyers representing the men have argued that despite the serious nature of their crimes, under the Bureau's criteria, transfer to ADX is typically reserved for inmates who have demonstrated an inability to function in a less restrictive environment without being a threat. From 1988 and 2024, at least 18 other death row inmates have had their sentences reduced to life in prison. And after being reevaluated and moved off of death row, none were sent to adx, according to a sworn statement filed in April.

B (30:36)

Ah, so with that executive order, on his first day in office, he sort of signed away their due process for a consideration. Now, lawyers for the men also said that the extremely restrictive conditions at ADX complicate medical care, making it unsuitable for prisoners with serious health problems. Several of the men involved in the case had been receiving treatment for conditions including various cancers, traumatic brain injuries and chronic mental illness. Filings by the men's lawyers described prisoners being held behind two sets of doors in a single occupancy cell smaller than an average parking space for 22 to 24 hours a day in a way that expert psychologists said was certain to exacerbate mental health issues. The Bureau of Prisons conducted a review of the men after the commutation of their sentences last year and determined all could be housed at other high security facilities, but not adx. Yet in February, Pam Bondi ordered that those determinations be overruled.

C (31:38)

Despite the ruling, Judge Kelly noted serious concerns about the strength of the men's case, though he blocked the transfer for the duration of the lawsuit. He described most of the other claims in the suit as long shots at best, quote at least for now, they will remain serving life sentences for their heinous crimes where they are currently imprisoned, he wrote.

B (32:00)

Mm. So I imagine what's going to happen here is that they'll go through some sort of a due process and then perhaps have to file individual points of relief if they feel that they the ADX is like cruel and unusual. I'm not sure. We'll see. We'll follow it though.

C (32:17)

Yeah. Yeah, for sure.

B (32:18)

All right, we've got one more story and then listener questions, but we have to take another quick break, so everybody stick around. We'll be right back. Foreign. Everybody, welcome back. We have one more story before we take your listener questions. If you have a question, there's a link in the show notes you can click on to submit one now. This story comes from the Times. The former top deputy to Jack Smith, the special prosecutor who twice indicted Donald Trump, is expected to announce on Wednesday. This is last week, and he has announced that he is running for Congress in Virginia, pitching himself as the only Democrat who actually prosecuted the president. J.P. cooney, a veteran of the Public Corruption division in the U.S. attorney's office in Washington, was fired in January 2025 after Trump purged all prosecutors associated with Jack Smith.

C (33:08)

In an interview ahead of his announcement, Mr. Cooney said he decided to enter the political arena because he wanted to push back against what he described as the democracy threatening lawlessness of the Trump administration. Quote, never has there been a Congress that has been such a weak and ineffective check on a president's abuses of power. Mr. Cooney, I lie awake every night worrying that Donald Trump does not have the best interests of our country in mind. And that's a seismic shift in American leadership and politics.

B (33:39)

Now. Mr. Cooney said that the biggest catalyst for his decision to run was the killing of Alex Preddy by federal agents in Minneapolis last month and what he described as despicable lies slandering him told by Kristi Noem, the Homeland Security secretary, when she described Mr. Preddy as a domestic terrorist. In that moment, Mr. Cooney said, I realized Americans like me need to stand up. Mr. Couney said he was prepared for an onslaught of Republican attacks, questioning his record as a nonpartisan federal prosecutor.

C (34:09)

Representative Jim Jordan of Ohio, the Republican chairman of the Judiciary committee who deposed Mr. Cooney last year in his investigation of the special counsel's office, did not respond to a request for comment about his run. Quote, my work speaks for itself, Mr. Cooney said, noting that he prosecuted not only Mr. Trump but also former Senator Robert Menendez, a Democrat of New Jersey who was sentenced to 11 years in prison for his role in an international bribery scheme. Quote, when it comes to democracy and the rule of law, I want my children and my community to know exactly where I stand.

B (34:45)

Yes, Now Jack Smith has made a statement about JP Cooney running for for this Virginia seat. He says, I've known JP For a long time and I think the world of him as a person and as a public servant. He's a man of integrity who has committed his career to upholding the rule of law and he's the model for who our country needs in public service.

C (35:03)

Mr. Cooney plans to run in a district that does not technically exist yet. He will seek a House seat in the 7th Congressional District, which is currently held by Representative Eugene Vindman, a Democrat. But Mr. Vindman's district, like those throughout the commonwealth, would change under a newly drawn political map that the Democrats in Virginia have proposed, which still must survive legal challenges and be approved in an April ballot referendum. That aggressive gerrymander, which could leave Republicans with just one seat in Virginia, is part of the Democratic response to a bid by Mr. Trump and Republicans to redraw congressional districts to gain an edge in their battle to keep control of Congress in this year's midterm elections.

B (35:47)

Yeah, for real. Hey, Supreme Court Leonard Leo, Donald Trump, Republicans, if you're going to say that political gerrymandering is okay, we're on board too. If the Democrats proposed map In Virginia survives, Mr. Vindman would move to an adjacent district and a new, more heavily Democratic leaning 7th congressional district, a lobster shaped area stretching from the Washington suburbs to up north and west as far as the West Virginia border and all the way south to the outskirts of Richmond would not have an incumbent. It's brand new district. Some Virginians have already begun to refer to the new district as the Lobster. So that's where he's running. It's in the seventh. It will be the new seventh District. And we just got word today that the Virginia Supreme Court has approved the ballot referendum. There was a challenge to it. It had been blocked by a lower court in Virginia, but the Virginia Supreme Court has overturned that and approved this, this ballot initiative to go forward.

C (36:44)

Yeah, and I hear the word in Virginia is this, this is going to be a very crowded field running for this. Assuming the district stands, which I think it will. Super blue seat, super blue seat, very blue. So a lot of people are going to be taking a shot at that. He will not be alone in running for that. I want to go back really to one piece of this real quick, though, because I got confused about this when I read it the first time, just when it came when I saw it on the website. This comment that Couney makes about his work. So the quote from the Times is my work speaks for itself, Mr. Cooney said, noting that he prosecuted not only Mr. Trump, but also former Senator Robert Menendez, a Democrat of New Jersey who was sentenced to 11 years in prison for his role in an international bribery scheme. Okay, so I'm not alleging that Couney said something inaccurate, but the way the story is written, it really, this is, this is not accurate. So JP Cooney brought the original case against Menendez, which had nothing to do with what he was later convicted for. It was a case in which Menendez was alleged to have conspired with a doctor named Solomon Melgen. And they brought the case, the investigation, in Miami, because that's where Melgen lived and where his practice was, where all these offenses took place. They did this long investigation, they brought the case, and it was no true billed. It's one of the only cases before all this Trump era, no true billing that I'd ever heard about before my own no true bill that I'd ever heard about.

B (38:16)

So. And when, by the way, when Andy refers to his own no true bill, he's talking about when the Justice Department went after him to try to Trump's first Justice Department to try to indict him for. Was it a 1001 charge?

C (38:27)

Well, we don't know.

B (38:28)

We don't know.

C (38:29)

He never told me.

B (38:30)

But, but they know true billed you. And I think it was multiple grand juries. I'm not sure if that was ever confirmed. Either.

C (38:38)

Yeah, they couldn't get. They couldn't get an indictment. The grand jury actually expired. It was not even seated anymore. And then they brought it back months later. But anyway, and the guy who did that was JP Cooney. So full disclosure here. I'm not a fan of JP Cooney. We have a lot of history. But nevertheless, he went after Menendez for what he allegedly did with Melgen. They tried to indict the case in Miami, failed. So what did he do? He brought it back in New Jersey. Brought the case in New Jersey. It was indicted, it went to trial, and I think hung jury or mistrial. They ultimately declared a mistrial because the jury could not agree on anything. And then DOJ decided not to retry the case. So that very long effort resulted in nothing. Years later, in 2023, Menendez was indicted for this other foreign involved conspiracy where he had the gold bars in his house and all the payoff money and all this other stuff with his new wife, who received a Mercedes Benz as payment from someone who's making a bribe. All this, all these things. Totally different case. That's the case that he was sentenced to 11 years on. So the way it comes out in this paragraph, I think is really, did.

B (39:58)

JP Cooney prosecute that case with the gold bars?

C (40:01)

No. No. Because in 2023, Cooney is working for Jack Smith.

B (40:05)

Right, Right.

C (40:07)

So interesting, you know, for him to throw out there. I, I prosecuted Menendez, if that's the way the conversation went. Maybe the reporter didn't get it quite right. I don't know. But he's a very aggressive guy. He was absolutely, you know, when the whole thing fell apart with the Menendez and Melgen case, he left DOJ and came to the D.C. u.S. Attorney's office as the head of their Public Integrity Section. One of the cases they were investigating at that time was mine, and it had completely run aground because even the people in the office felt that it was entirely being politically demanded by above. The two AUSAs who conducted the investigation, one of them quit the office over it, left DOJ entirely. The other one quit the case, asked to be reassigned. And amid this wreckage, JP Cooney was all in with Trump's desire to fire me. I don't know what that says about him. All I know is I didn't appreciate it then, and I don't have much faith in him now. But that's just my own personal experience.

B (41:16)

And, you know, well, thanks for setting the record state. We will say, I will say about JP Cooney is that he was One of the first people to push real hard, even before Merrick Garland got there in 2021, to investigate the, of the coup, meaning not just the boots on the ground, but he did. He did the people in, in charge of the coup all the way up to and including Donald Trump. And, and it was because of a read in from JP Cooney after Merit, right after Merrick Garland got there, that in June of 2021 was about a month and a half after Garland had been there, that Garland put together what he called the Investigations unit, which was a group of very small group of people that were to charged with investigating the coup going all the way up to Donald Trump. And at first they were focused on the Willard War Room and the connections between the Oath Keepers and the Proud Boys. And like Bannon and all those people at the Willard War Room and the White House going up to Trump, they eventually abandoned that tack, which was JP Cooney's original tack and start and, and went in on the fraudulent elector scheme and the other conspiracies that led to January. January 6th. So that was the role JP Cooney initially played at the Justice Department. Then Windham was put in charge after we finally got a U.S. attorney at the end of 2021 in the D.C. u.S. Attorney's office, a man named Thomas Windham was put in charge. And he once Jack Smith was appointed a year later, Wyndham and Cooney and everybody that had already been working on this were just simply brought onto Jack Smith's team. So that's sort of a little bit of a background on that. And then the Supreme Court shut it all down.

C (42:56)

Yep. Gone. Dust in the wind.

B (43:00)

Yeah. All right. All right, it is time for listener questions. We've got time for one or two. So again, there's a link in the show notes. If you have a question, you can click on that link and send in your questions to Andy and me. What do we have today, Andy?

C (43:15)

All right, so I have one question and also one correction. This we got from a couple of people. I always like to put the corrections out there because it drives me crazy thinking that we inadvertently left something in the wrong direction. So this one comes to us from Tammy. Tammy says we also got one from Rick and there, there may have been others as well. Tammy says this is a comet, not a question. The chief judge in Minnesota is Schiltz, not Schlitz. Longtime listener. Love all the insights I get.

B (43:50)

All right, okay. If your name is Schiltz and you live in the Midwest, your name is Schlitz. I'm sorry.

C (43:55)

It's just I don't think probably he's ever been called Schlitz.

B (44:02)

Yeah. That's weird.

C (44:03)

Was there ever a day in. In grade school that he wasn't called Schlitz? I don't know. But, Tammy, you are correct. It's Schiltz with the L before the T. Yeah.

B (44:14)

All right. My. My old eyes are going because I didn't even see it. It wasn't like I saw it and knew it and got it wrong.

C (44:20)

Not it. Me neither. Just ripped right past it. I was like, oh, the beer. Oh, keep going. Yeah, sorry. So Tammy is correct.

B (44:26)

Thank you. Thank you, Tammy and Rick. And at all for that.

C (44:29)

That's right.

B (44:30)

Correction, Schiltz. I will do my best to say that next. Next time we talk about that, Judge. Exactly.

C (44:37)

All right, so onto the question. So this comes to us from Susan. Susan says, could it be possible that someone from Congress could subpoena an FBI agent who would testify as to what they were asked to flag in regard to Trump's name in the Epstein files when they were asked to flag items with his name? Is it possible there is an FBI whistleblower who might be willing to testify to such. Is it possible they could actually identify evidence that completely incriminates Trump? Do we have to wait until after the midterms, which I pray will actually happen unhindered? All right, Tammy, there's a lot in there, and so I'm going to hit a couple of these and then I'm going to go to my partner here to see what you think. So the first one, can they subpoena an FBI agent? Well, they typically would not. Well, this one never would because this is the kind of testimony.

B (45:27)

First of all, only the majority can issue a subpoena.

C (45:29)

That's right. That's right. And you know, that's their own. They want to hear from Bill Clinton, but pretty much no one else. So, but, but as a, as a policy matter, the FBI does not allow agents to testify in Congress. To testify, you have to be at, like, a GS15 or above, and the DOJ insists on that as well. You don't. We don't put, like, line agents who are, like, working on the streets in front of Congress. That's been a rule for years and years. It's not a law, but it's a policy and pract, and Congress has always respected it. Now, could they subpoena an agent? I suppose they could, but DOJ could then just turn around and say, we order you not to go. Then what does Congress do they could vote to hold the agent in contempt and then make a referral of contempt over to the doj who would probably do nothing because they ordered him not to go. So that wouldn't really go anywhere. The next piece though is kind of interesting. Let's see. Is it possible there's an FBI whistleblower who might be willing to testify to this activity about how the Epstein files were reviewed? That's absolutely possible. That could happen anytime. An FBI person, agent, analyst, somebody out, in, out in the facility that, that handles the records. If they felt like they had seen something that qualified as waste, fraud or abuse, they could make a whistleblower disclosure either internally to, you know, the FBI kind of process for doing that, or they could go straight to Congress and, and give it to someone, you know, over there. So that, that could happen. Probably would have happened by now if it was going to, but so far we haven't seen that.

B (47:17)

So well, that end, we still don't have the majority and so we don't get to pick what witnesses we call. Here's what I would recommend Congress first flip Congress, flip the House. I think, I think we're set to do that in November. And once you have the committees and once you have subpoena power, I would bring in former FBI agents and analysts to testify. Or you can go to muellershirote.com and read what I've written about sources, former FBI officials who reviewed the Epstein files, what they had to say, if you want to kind of get a little insight on, on what they might testify to. But that's what I would do. I would, I would go and get the form like right now we had, we talked about this last week, right. Like a bunch of former prosecutors and said to Congress, wrote them a memo on how to do a thorough investigation on DHS ice, Customs and Border Protection, use of force. And they said, well, we're a bunch of former January 6th prosecut. We suggest you get a bunch of former FBI analysts and a bunch of former DHS lawyers and get them all together and have hearings. And so that's what I would, that's what I would say. And honestly I think that there are going to be of the ,ousand plus maybe 1500 Information Management Division FBI personnel that reviewed the files the first time, I think there's going to be a lot of those that are former now former FBI employees.

C (48:51)

So. Yeah, yeah, absolutely. Absolutely. People are constantly doing that. Many of them. That's right. Once you're a former, you're private citizen. In fact, if you Were you could definitely be subpoenaed and you would have to comply with the subpoena, otherwise you risk being held in contempt. So, yeah, that could definitely happen. We'll see. The substante thing is not going away anywhere.

B (49:13)

No. And when we get the majority, I'm assuming that the Democrats will form a Commission, like the 911 Commission or like the January 6th Select Committee to investigate these matters. And I, I definitely think, as. As you say, Tammy or Susan, excuse me, that it would be very worthwhile to bring in some of these analysts, especially former ones, so the DOJ can't block them to talk about what they saw when they reviewed the Epstein files and redacted Trump's.

C (49:39)

Name. Yeah, yeah. I heard an interesting fact the other day listening to an episode of the Daily, which is the New York Times daily podcast on, you know, some newsworthy issue every day, had three reporters who had been covering the Epstein thing. And one of them said, the 3 million documents is so massive that you could. The Times could assign 50 reporters, 5, 0. To do nothing but read 500 pages each, every day, and it would still take, like, six months to get through all the documents. It's like, yeah, an enormous amount of work. And I think there's no sign that it's going to decrease in interest. So the media is going to keep hammering away at it and coming up with these revelations day after day, week after week. So stick around, keep watching this space, because you never know what's going to come out next.

B (50:33)

Yeah. And Jamie Raskin said when the Department of Justice provided the members of Congress and the Senate four computers to search the unredacted files, and these are just the 3 million they've released. It's not the 6 million in total that exist. He said it would take, I think he did some back of the napkin, back of the envelope math. And he said it would be like, take like seven years to go for us to go through these with four computers. And now we're learning that the DOJ is actually tracking the search terms that these senators are using. And I find that is something that needs to be investigated, whether it's awful or lawful. I think, I think the takeaway, at least for me, is that the next time any Republican brings up the toll records that Jack Smith collected, I.

C (51:22)

Was just gonna say that, that it.

B (51:24)

Should, that they should respond with this. You spied on us. Jack Smith had the lawful right to do that. You didn't inform us at all. How can you be like, oh, you didn't tell them you didn't tell the judge when subpoena that we were members of Congress, did you? Well, you didn't tell the members of Congress that you were tracking their search terms.

C (51:45)

Either. It's an absolute violation of the speech and debate clause, I believe, and it's not without precedent because years ago when the Senate was conducting that years and years long investigation into the CIA's rendition and detention interrogation program, they went through all these processes to build a new computer network at CIA that, that, that congressional investigators could come over and use to be able to access the very sensitive, you know, reports and, and all the documents behind that issue. And about halfway through they figured out that the CIA was tracking what the, what the investigators were looking at on CIA systems. And it was a huge scandal and CIA had to apologize. He made up all these excuses like we didn't mean to, that, you know, the machines were just doing it on their own sort of thing. And you know, it was, people were wildly offended about it, particularly up on the Hill. This is the exact same thing. It's just a different executive branch agency doing the same exact thing.

B (52:51)

Terrible. But anyway, yeah, and, and my first thought when I was comparing these two things was, well, these are DOJ computers. But then I immediately reminded myself that the phones where the toll records were, you know, subpoenaed by Jack Smith were government issued phones. These are all government devices. So it's not like, you know, anyway, I mean, can DOJ track what.

C (53:17)

Their own employees look at on their computer systems? Absolutely. All day long. But can they do that to, to congressmen, to lawmakers who have oversight, especially separate branch conducting oversight, which is absolutely in the wheelhouse of the speech and debate clause. I mean, no, I think it's.

B (53:35)

A separation of powers issue too. I think it tramples all over checks and balances.

C (53:38)

It's. Yeah, yeah.

B (53:40)

Yeah. I'm not sure what the remedy would be for that other than politically and scandally speaking. But anyway, there we are. Thank you all for your questions again. There's a link in the show notes if you want to submit one. I hope everybody had a safe weekend. I hope everybody took a little bit of time for themselves to rest, unplug, relax, recharge so that we can get back at it tomorrow. Before we get out of here, Andy, is there anything else you would like to impart upon the unjustified.

C (54:09)

Community? Just a happy belated Valentine's Day to one and all. Hope you had an opportunity to enjoy a little time with someone you love, whoever that might be, however that might be good for you if you didn't go out and do it today.

B (54:23)

Yeah. And a lot of you might not know this if you didn't listen to the original Mueller She Wrote podcast. But Andrew McCabe was Mr. February. Heck.

C (54:31)

Yes. I forgot about that.

B (54:32)

Myself. Sexy justice calendar. And yeah, for Valentine's Day, I remember you signed my calendar when I first met you. You signed your. And these were all pinup, like 50s pinup girls, but like, with bad photoshopped heads. So you've got Andy McCabe sitting there in a, like a red negligee and he's like, how do you know I like red so much? I was like.

C (54:58)

I. My enormous absurd head on top of some beautiful 50s pinup. It's like a creature from a Frankenstein movie or something. But anyway, all good.

B (55:10)

Fun. The salad days when all we had to worry about was Russian interference. Life was so simple.

C (55:16)

Then. Oh, my.

B (55:17)

Gosh. My goodness. All right, everybody, we will see you next week on Unjustified. Thank you so much for listening. I'm Alison.

C (55:23)

Gill. And I'm Andy.

B (55:24)

McCabe. Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McKay. 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.