UnJustified – Episode 56: "Grand Jury Shut Out"

Date: February 15, 2026
Hosts: Allison Gill (creator of "Mueller, She Wrote") & Andrew McCabe (former Deputy Director of the FBI)

Episode Overview

This episode explores the deepening erosion of civil liberties and the rule of law under the Trump Department of Justice. Allison Gill and Andrew McCabe analyze three headline-grabbing stories:

1. An unprecedented complete rejection by a federal grand jury of the Trump DOJ's attempted indictments of six Democratic lawmakers for a controversial video.
2. The ongoing power struggle over U.S. Attorney appointments, as the Trump administration dismisses a judge-appointed federal prosecutor.
3. A federal judge's injunction against the Trump administration's attempt to transfer commuted death row inmates to a supermax prison.

Throughout, the hosts highlight the systemic clashes between the judiciary, Congress, and executive agencies in a year of constitutional crisis.

Key Discussion Points & Insights

1. Federal Grand Jury Refuses to Indict Six Congressional Democrats

• [01:56 – 12:36]
  • The DOJ attempted to indict Mark Kelly and five other Democratic members of Congress for a video urging military personnel to disobey unlawful orders.
  • The grand jury in D.C. unanimously refused to indict—an exceptionally rare event, as only 12 of up to 23 jurors are required for an indictment.
  • Quote (Allison Gill, 06:42):
    “You only need 12 to get you over the hook… and the government attorneys assigned to this case got zero.”
  • The prosecution team comprised overt political appointees, including Carlton Davis (longtime GOP staffer) and Stephen Vandervelden (former local prosecutor/dance photographer, once under Jeanine Pirro).
  • The DOJ’s repeated, unsuccessful attempts to criminally sanction political opponents are discussed as evidence of “government by vendetta.”
  • Federal Judge Richard Leon granted Sen. Mark Kelly a preliminary injunction against efforts to reduce his rank/pension, declaring the government had “trampled on Senator Kelly’s First Amendment freedoms.”
  • Quote (Judge Leon, cited by Gill, 10:03):
    "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. … You don't need a weatherman to know which way the wind blows." (Bob Dylan, Subterranean Homesick Blues)
  • Both hosts lampoon the prosecutor’s team:
    McCabe (08:16):
    “A really high speed federal prosecutorial team. County prosecutor-turned-dance-photographer and a political staffer…”
  • The unprecedented scale of grand jury rejections is examined as a sign of public disbelief in politicized prosecutions.
  • Gill and McCabe further discuss the rules and ethics of grand jury proceedings, referencing Preet Bharara’s letter urging the DOJ to halt the investigation.

2. Trump Administration Fires Judge-Appointed U.S. Attorney

• [15:15 – 24:18]
  • Judges in Albany, NY, attempted to exercise their rarely-used power to appoint a U.S. Attorney (Donald T. Kinsella) after the Trump administration’s pick could not win Senate confirmation.
  • Kinsella was summarily fired (within five hours) via email by Deputy AG Todd Blanche, who crowed via social media:
    Quote (Blanche, via McCabe, 17:01):
    “Judges don’t pick U.S. Attorneys. POTUS does. See Article 2 of our Constitution. You are fired.”
  • This episode reveals broader systemic friction: judges in several districts trying to thwart unqualified or overtly partisan Trump interim appointees, with the administration mobilizing rapid firings to reinforce executive control.
  • The hosts highlight questionable Trump picks, such as John Sarcone (no prior prosecution experience) and the manufactured controversies his office produced (e.g., false claims of an attempt on his life by an “undocumented immigrant”).
  • Judges in other districts are considering similar actions, but the administration’s firings serve as a “shot across the bow.”
  • Analysis by McCabe (21:23):
    McCabe suggests judges could refuse to docket new cases submitted by unlawfully serving U.S. Attorneys to force DOJ’s hand.

3. Federal Court Blocks Transfer of Commuted Inmates to Supermax Prison

• [25:39 – 32:18]
  • Federal Judge Timothy R. Kelly (a Trump appointee) temporarily barred the administration from transferring 20 former death row inmates (whose sentences were commuted by President Biden) to ADX Supermax.
  • The Trump administration, in response to Biden’s commutations, sought the harshest possible conditions for these inmates.
  • Quote (Judge Kelly, 26:26):
    “Whenever the government seeks to deprive a person of liberty or property interest… the process it provides cannot be a sham.”
  • Notably, the Bureau of Prisons’ own review did not recommend transfers to ADX, and the sudden executive order signed by Trump on his first day back sought to override established due process for these inmates.
  • Several affected prisoners had serious medical conditions, with experts highlighting the inhumanity and danger of twenty-three hour solitary confinement, especially for those with mental illness or health issues.
  • This ruling upholds the principle that due process protections apply to all, regardless of the notoriety of the prisoner.

4. Former DOJ Prosecutor JP Cooney Runs for Congress

• [32:18 – 42:56]
  • JP Cooney, formerly of Jack Smith’s special counsel team and Public Corruption Division, launches his campaign for Congress in Virginia’s new 7th District.
  • Cooney presents himself as the only Democrat “who actually prosecuted the president.”
  • Quote (Cooney, 33:08):
    “Never has there been a Congress that has been such a weak and ineffective check on a president’s abuses of power.”
  • McCabe provides crucial background—while Cooney helped prosecute key cases, including against Trump, he did not secure the later conviction of Sen. Menendez for bribery, despite some media misrepresentation.
  • Gill notes Cooney’s significant early role in accelerating the DOJ’s January 6th investigation all the way to the Oval Office.
  • The segment touches on aggressive gerrymandering in Virginia and the complexities of running in a newly drawn, ultra-blue district.

5. Listener Q&A and Fact Correction

• [43:00 – 54:09]
  • The hosts correct a previous misstatement: Minnesota’s chief judge is Schiltz, not Schlitz.
  • Listener Susan asks about the plausibility and process for Congress subpoenaing FBI agents related to the Epstein files and Trump.
  • McCabe notes Congress could try, but DOJ policy and majority power dynamics make it unlikely.
  • Discussion touches on whistleblower protections, practical barriers, and the scale of the Epstein document cache (3M documents released; 6M exist).
  • Speculation continues about future congressional investigations into DOJ practices, including the revelation that DOJ monitored the search terms used by Senators reviewing Epstein files.
  • Memorable Exchange (Gill, 51:24):
    “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.”

Memorable Moments & Quotes

• Dylan Footnote in a Judicial Order:
  Judge Richard Leon referencing Subterranean Homesick Blues—complete with citation—to chide the government for obvious constitutional violations.
  Gill (10:21): “Now that’s legendary.”
• Zero-Vote Grand Jury (“Shut Out”):
  Both hosts express astonishment at a grand jury returning no votes for indictment in such a politicized case.
  • Gill (06:42): “And the government attorneys assigned to this case. So zero. Zero voted for this… to be completely shut out like that…”
  • McCabe (05:56): “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 favor.”
• Satirical Take on Trump Appointees:
  • McCabe (23:33): “He’s still sitting there like, I’m the real U.S. attorney. You can’t make me leave.”
  • Gill (23:54): “We should Truman Show Donald Trump. Put him… make a little Oval Office… have actors call him like they’re world leaders and keep sending in Diet Cokes.”

Notable Timestamps

• [01:56–12:36]: Grand jury’s total rejection of DOJ’s case against House Democrats; First Amendment judicial rebuke; rare legal ethics and process context.
• [15:15–24:18]: Firing of judge-appointed U.S. Attorney; ongoing clashes between judiciary and Trump DOJ.
• [25:39–32:18]: Supermax transfer blocked; due process themes; effects on commuted inmates.
• [32:18–42:56]: JP Cooney’s congressional bid, his DOJ legacy, and detailed context from McCabe.
• [43:00–54:09]: Fact check and listener Q&A: Congressional subpoenas, whistleblowers, and investigative hurdles.

Tone, Language, and Takeaways

• The hosts employ biting humor, legal precision, and accessible explanations. Their analysis is deeply informed but approachable, often lampooning Trump administration figures and decisions while remaining rooted in rule-of-law advocacy.
• The episode is especially valuable for anyone following governmental checks and balances, DOJ overreach, and the personal stories of legal professionals navigating a time of constitutional crisis.
• It underscores the importance—and fragility—of institutional norms, persistent judicial oversight, and the role of public resistance in staving off democracy’s erosion.

For listeners seeking context, insight, and a healthy dose of levity amidst troubling legal news, this episode is essential.