UnJustified — "Particularized Incompetence"

Podcast: UnJustified
Host: MSW Media
Episode: Particularized Incompetence
Date: November 23, 2025
Guests/Co-hosts: Allison Gill, Andrew McCabe

Episode Overview

This episode examines the unraveling of the Department of Justice’s (DOJ) prosecution of former FBI Director James Comey, focusing on severe errors, misconduct, and constitutional violations in the government’s handling of grand jury evidence. Allison Gill and Andrew McCabe break down the judicial findings, incompetence by prosecutors, implications of the events for civil liberties, and other headline DOJ controversies including the release of the Epstein files, legal opinions on lethal boat strikes, and Trump’s RICO lawsuit saga.

Key Discussion Points and Insights

1. The Comey Case: Judicial Scrutiny of Grand Jury Conduct

[00:07 - 44:59]

Context and Setup:

• Judge Nachmanoff and Magistrate Judge Fitzpatrick are at odds with the DOJ about providing grand jury materials to Comey’s defense.
• Fitzpatrick's scathing 24-page memo outlines 11 specific grounds (“particularized incompetence”) exposing grave problems in the government’s case.

a. 11 Judicial Findings Detailing Government Misconduct

• Fourth Amendment Violations:
  • DOJ reused materials from a 2019-20 search of Comey’s associate Dan Richmond without acquiring a new warrant for the new case.
  • "You can’t go back years later, pull that stuff out of the drawer and say...and just start culling through the information..." — Andy McCabe [05:16]
• Prosecutorial Willfulness:
  • The DOJ preserved and reviewed material outside the original scope, failing to destroy irrelevant evidence as mandated.
• Attorney-Client Privilege Ignored:
  • Comey never got the chance to assert privilege over communications with his lawyer, Richmond.
  • Privileged material potentially instrumental in the grand jury's indictment.
• Blatant Legal Errors Presented by Prosecutor Lindsey Halligan:
  • Halligan’s statements to grand jurors suggested a negative inference if Comey pleaded the Fifth and promised future evidence not available at present.
    • "You cannot stand in front of a grand jury and say, if you're not quite convinced...don't worry, we've got much better stuff..." — Andy McCabe [15:56]
• Missing Recordings:
  • Over two hours of grand jury tape missing at a crucial juncture; confusion over whether the revised indictment was ever presented or voted on.

b. Unprecedented Blunders in Indictment Procedure

• Prosecutor Halligan never presented the operative two-count indictment to the full grand jury; only she and the foreperson signed it and handed it to the court.
  • “There is no valid indictment of Mr. Comey.” — Reading from Comey’s brief [31:26]
• DOJ’s attempts to backfill the record (“late-breaking notice”) only sowed more confusion.

c. Defense and Court Reaction

• Comey’s counsel Dreeben and Fitzgerald stunned by the government admissions; motion for dismissal filed, citing numerous “fatal errors” even before getting all grand jury materials.
• “There’s enough already on the record to dismiss this thing 14 different ways.” — Allison Gill [40:04]

2. Broader DOJ News

a. Epstein Files Transparency Act

[45:01 - 49:14]

• Congress passed and Trump signed the act mandating DOJ release of Epstein files. Attorney General Pam Bondi promises, “We will follow the law,” but offers ambiguity about which statutes govern potential redactions.
• Allison draws parallels to redaction battles over the Mueller Report.

b. Legality of US Lethal Boat Strikes Near Venezuela

[49:14 - 52:30]

• Senior JAG lawyers at Southern Command warned boat strikes may be illegal “extrajudicial killings,” but were overruled by the DOJ’s Office of Legal Counsel.
  • “We did not just kill people with drone strikes...So, yeah, this guy has a long history likely...conducted in a very different way.” — Andy McCabe [51:35]

c. Trump’s RICO Lawsuit Against Clinton and Others

[52:49 - 57:29]

• Trump files (and loses) a RICO case alleging a vast conspiracy to fabricate “Russia collusion.”
• Judge Middlebrooks (and later the 11th Circuit) dismisses the suit as factually and legally groundless; Trump and attorney Alina Haba sanctioned $1 million.
  • “What Trump's lawsuit lacks in substance and legal support, it seeks to substitute with length, hyperbole and the settling of scores and grievances.” — Quoting Middlebrooks [54:12]

3. Q&A — Listener Legal Questions

[57:42 - 61:55]

• Can declination memos (e.g., Eric Siebert’s refusal to charge Comey) be accessed or entered as defense evidence?
  • Likely subject to deliberative process privilege, but jury may learn the memo exists; judges may allow more in the “abnormal” context of this case.

Notable Quotes & Memorable Moments

• On the DOJ’s Overreach and Malpractice:

  • “Be careful what you wish for, because sometimes you just might get it. And here they got it.” — Andy McCabe [03:23]

• On Grand Jury Blunders:

  • “This is so bonkers. No, they have to decide based on the evidence you present that day, period.” — Andy McCabe [15:56]
  • “You would have seen those guys sitting behind the defense table just look at each other like, what did she just say...am I having a stroke?” — Andy McCabe [31:49]

• On Political Motivation:

  • “The President initiated this prosecution because of his vindictive animus towards Mr. Comey, intent on retaliating against a perceived political enemy.” — Quoting Comey’s brief [38:13]
  • “That strong remedy will also send a signal to the President and the Department of Justice that the current pattern of politically motivated prosecutions violates bedrock American constitutional principles.” — Quoting Comey’s brief [39:00]

• On the Lawsuit Dismissals:

  • “I think that’s how I would describe the whole administration.” — Allison Gill on the RICO suit [56:57]

Timestamps for Important Segments

| Timestamp | Segment/Event | |----------------|------------------------------------------------------------------------| | 00:07–04:34 | Summary of court standings, grand jury orders, introduction of findings | | 04:34–18:52 | Detailed breakdown of the 11 judicial findings of misconduct | | 19:28–25:33 | November 19th hearing: revelations about indictment mishandling | | 25:33–29:40 | Dissection of charges and failed logic in Comey indictment | | 30:02–36:12 | Comey’s motion to dismiss: legal and constitutional grounds | | 45:01–49:08 | DOJ and Epstein Files Act: release logistics and historic redactions | | 49:14–52:30 | DOJ overrules senior JAG doubts over lethal boat strikes | | 53:16–57:29 | Trump’s failed RICO lawsuit and appellate prospects | | 57:42–61:55 | Listener question on declination memos and privilege issues |

Tone & Style

Gill and McCabe’s commentary is breezy, irreverent, and sharply critical of both DOJ and the Trump administration. They blend legal analysis with wry humor and palpable incredulity at the incompetence and overtly political handling of major prosecutions.

Conclusion

The episode paints a damning portrait of DOJ malpractice in the Comey prosecution, with extensive judicial findings suggesting not just incompetence but politically-driven disregard for constitutional norms. The hosts predict the case’s collapse and underscore how attempts to obscure the truth led to greater transparency, thanks to the government's ill-advised objection. Elsewhere, questions about justice, transparency, and legality permeate DOJ’s handling of the Epstein files, overseas lethal strikes, and continued Trump litigations. Despite the levity, the stakes for rule of law and civil liberties shine through.

For further details, check mswmedia.com and listen to the next episode of UnJustified.